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BOSTON PUBLIC LIBRARY 



3 9999 063 



7 367 6 






OFFICE OF NATIONAL RECOVERY ADMINISTRATION 
DIVISION OF REVIEW 



LEGAL ASPECTS OF LABOR PROBLEMS — MINIMUM WAGES 

By 

Melvin Sims 



WORK MATERIALS NO. 43 



February. 1936 



02FIC3 0? NATIONAL RECOVERY ADMINISTRATION 
DIVISION OP REVIEW 



LEGAL ASPECTS OP LA30R PROBLEMS ~ LUNIL'UM WAGES 

By 
Melvii; Sims 



Februaiy, 1936 
9713 



FOREWORD 

This report on "Legal Aspects of Labor Problems — Minimum 
Wages" was prepared "by Mr. Melvin Sims. 

The "basic legal question of power to regulate in the 
field of minimum wages reaches far "beyond the National 
Industrial Recovery Act. It involves the question 
extent to which there is such power in either Federal or 
State Governments. This study explores the limitations 
upon the power of these governments. 

The original plan was to combine into a single volume 
this analysis in the field of minimum wages with similar 
studies on maximum hours, child labor, and collective bar- 
gaining. Limitations of time and curtailment of personnel 
have necessitated the issuance of txiose analyses in separate 
documents instead of in one volume as originally planned. 

At the back of this report •.•ill be found a orief state- 
ment of the studies undertaken by the Division of Review. 



L. C. liar shall 
Director, Division of Review 



February 27, 19GR 



9713 -i- 



TABLE OF CONTENTS 

Page 

Introduction 1 

Definitions 1 

Analysis of Public Works Wage Laws 1 

Court Decisions 4 

Analysis of Wage Laws in Private Industry 6 

Court Decisions 8 

Private Industry Wage Laws Since 1933 24 

The Adauson Act 29 

Wilson v. Hew 29 

Re strae 33 

App endix. 36 

Standard Minimum Wage Bill for Women and Minors 37 

Wage Laws 

Arizona 46 

Arkansas 52 

California 56 

Colorado 63 

Connecticut 67 

Delaware 71 

District of Columbia 74 

Florida 30 

Idaho 82 

Illinois 84 

Kansas 86 

Kentucky 

Maine SI 

Maryland • 

Massachusetts 93 

Minne so ta 

Montana 

Nevada 

New Hampshire 100 

New Jersey 102 

New York 105 

llorth Dakota Ill 

Ohio 113 

Oregon 116 

Pennsylvania 120 

Puerto Pico 121 

South Dakota 122 

Texas 123 

Utah 124 

Washington 126 

Wisconsin 132 



3713 „ii„ 



-1- 

MINIMUM WAGES 



Looking back at the minimum wage lavrs in effect in the years 
preceding the National Industrial Recovery Act, it is striking to ob- 
serve their restricted scope. Of the two fields covered by these laws, 
regulation has bejp less extensive in the field of Private Industry, 
comprising all enterprise for profit, than in that of Public Works, com- 
prising improvements of public property by or on behalf of the State, 
such as, the construction, repair, and maintenance of buildings, roads 
and sewers. 

Public 'Tories wage laws exist in only thirty-one of the states, 
territories and possessions (*). With minor exceptions, (*■*) the mini- 



(*) Alaska, Arizona, California, Colorado, Connecticut, 
Delaware, District of Columbia, Florida, Hawaii, 
Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, 
Maryland, Montana, Minnesota, New Jersey, New York, 
Nevada., Ohio, Oregon, Pennsylvania, Puerto Pico, 
Texas, Utah, Vermont, Washington, West Virginia 
and Wisconsin. 



(**) Hawaii has enacted a flat minimum rate of $2.50 
per day. (Rev. Laws. of Hawaii, 1.-35, Sec. 92) 
The Indiana statute provides that the wage shall 
not be less than that paid by the State Highway 
Commission for common labor on its highways. (Sp. 
Session of 1932, Ch. ^0) 

Kentucky .provides for prevailing wages which shall 
not be less than one dollar nor more than three dol- 
lars per day, with a top cf five dollars for skil- 
. led labor, foremen, and assistant engineers. (Stat: 
Carroll's 1930, Sec. -K52S) 

T'evada provides a minimum of four dollars for 
an S-hour day or fifty cents per hour for un- 
skilled labor. (Acts of 1933, Ch. 40, Sec. l) 
Puerto Pico provides not less than one dollar 
minimum for laborers, workmen, or mechanics. 
(Acts cf 1923, Act No. 11, Sec. 1, as amended 
1925, Act. No. 54) 

Texas provides thirty cents an hour minimum 
for manual labor on highways. (Acts of 1931, 
Ch. 4^, Sec. 1) 

The Vermont Highway 3oard fixes minimum wages 
"subject to local conditions."- (Public Laws 
1935, Sec. 4690) 

For imre detailed inf ormation, refer to the 
Wage Standard Section of the appendix of this 
report, and refer to the state under inquiry. 



9713 



-2- 



mum wage enacted is the wage current or prevailing in the community 
where the work is performed. Even in these, however, the laws, except 
those of Oregon (*) are not applicable to all hinds pf public works 
and to all employees engaged on such works, although in three states 
they apply to the preparation of materials prior to their use in 
public works (**). In 11 states, Hawaii and Puerto Rico, the laws are 
broadly applicable to all kinds of public works (***) but those of 
Oregon alone apply to all employees as well (****). Of the remaining 
18, the laws in only one state, Te::as, are applicable to maintenance work 
then solely on highways (*****). The laws of three states are rendered 
inapplicable by express reference (******), in but eight of these 
states are the laws applicable to alterations, improvements and 
repairs (******* ) f the laws being restricted to construction work in 



9713 



(*) Acts of 1933, Ch. 357, Sec. 24, Sub. 
(**) Delaware (Revised Code 1933, 2161, Sec. 46) 
New Jersey (Cumulative Supplement 1911-24, 

Section 107-7P-cL, as amended 1953, Ch. 230) 
New York (Cahill's Consolidated Laws 1930, 
Ch. 32, Sec. 220, as amended 1935, Chapters 
732-733; 1934, Ch. 347) 
( * * * ) Delawar e ( cupra) 

Hawaii (Rev. Laws of Hawaii, 1935, Sec. 92) 
Idaho (Idaho Code, 1952, Sees. 43-701) 
Kansas (Rev. Stats. 1923, Sees. 44-201, as 

amended 1931, Ch. 214) 
Maryland (Public Local Laws 1930, Art. la, 
Ch. 54, Sees. 102-102A, 1023, 102C, as a- 
mended, Special Session 1933) 
Minnesota (Supplement 1934, Sees. 16R4-43) 
Montana (Acts 1931, Ch. 102, Sec. l) 
Hew Jersey (supra) 

Hew Mexico (Acts of 1935, Ch. 145, Sec. l) 
Hew York ( supra) 
Oregon (supra) 
Puerto Rico (Acts of 1923, Act. Ho. 11, Sec. 1, 

as amended 1925, Act Ho. 54) 
West Virginia (Acts of 1935, Ch. 57, Sees. 1 
and 2) 
(****) Oregon (Acts of 1953, supra,) 
(*****) Texas, Acts of 1231, Ch. 46, Sec. 1 
(******) California (California C-eneral Laws, 1931, 
Act 6429, Sec. l) 
Texas (Acts of 1933, Ch. 45, Sec. l) Kbte: 
There is some doubt as to the extent to 
which Chapter 45 supersedes 46. 
Utah (Acts of 1933, Ch. 39) 
(*******) Arizona (Acts of 1933, Ch. 72, Sec 4) 

Colorado (Acts of 1935, Ch. 124, Sec. l) 
Connecticut (Cumulative Supplement to the C-eneral 
Statutes, 1331-33, Sec. 31S) applies to public 
buildings only 
(Footnote continued on following _ii age) 



-3- 

five states ..and Alaska (*) and to particular political subdivisions 
in three states (**). Four states restrict the application of these 
laws to works above certain cost figures (***), and seven states 
restrict their application to certain t Tr pes of projects (****). The 
laws of "but three states and Alaska apply to all employees (*****). 
Application of the law is restricted to free laborers and free 
mechanics in Florida, to common labor in Indiana, to manual or day 
labor in Kentucky and to manual labor on highways in Texas. Nevada's 
lav/s are restricted to unskilled labor, Maine's to laborers and 
Wisconsin's highway laws to laborers. The lav/s of the remaining 
states apply in most cases to laborers, workmen, and mechanics. 



(*******) Florida (Act of 1933, Ch. lfiCOO, Sec. l) 
Cont'd Ohio (0-eneral Code of Ohio, 1932, Sec. 17-3 to 
17-fi, inclusive) 

Wisconsin (Stats. 1931, Sec. 103.49 and 103.50) 
applies to public buildings and highways only 

Hew Jersey (Act of 1931, Ch. .:A2, Sec. l) ap- 
plies to public buildings only 

Vermont (Public Laws, 1933, Sec. 4n°0) applies 
to highway work and bridges only 
(*) California (supra) 

Indiana (Special Session of 1932, Ch. ^0) 

Maine (Act of 1933, Ch. 238) 

Nevada (Acts of 1933, Ch. 40, Sec. l) 

Texas (Acts of 1933, Ch. 45, Sec. l) exclusive of 
state highways 
(**) Pennsylvania (Penna. Stats. 1920, Sec. 541fi) 
School districts 

Washington (Acts of 1931, Ch. 1, Sec. 8) 
Public utility districts 

Maryland (supra) City of Cumberland. There 
are, however, additional counties in Mary- 
land which enacted public works wage laws. 
(***) Arizona (supra) works costing more than $1,000. 

Colorado (supra) works costing more than $5,000. 

Florida (supra) works costing more than $5,000. 

Hew Jersey (Acts of 1931, Ch. 242, Sec. l) works 
costing more than $5,000. 
(****) Florida (supra) Public buildings 

Hew Jersey (Acts of 1931, Ch. 24-2, Sec. l) 
Public buildi . y 

Indiana (supra) highways and bridges 

Kentucky (supra) Fiblic roads 

Texas (Acts of 1931, Ch. 4-., Sec. l) State 
highways 

Vermont (supra) highway work and bridges 

Wisconsin (supra) public buildings and 
highways. 
(*****) Alaska (suora) 

Few Mexico (supra) 

Ohio ( supra) 

West Virginia (supra) 



9713 



-4- 

While the state has the power, if not restricted "by con- 
stitutional limitations, to fix the wages of its employees engaged 
on public works under its power to make contracts (*), the courts 
have strictly construed the state constitutions, holding several en- 
actments unconstitutional (**). It has been held that states have 
the power to delegate the fixing of wages of emplo r ees on public 
works to municipalities. But where the municipal charter is not 
broad enough to exercise this function, or where the state power or 
the constitution is infringed thereby, the courts have held such en- 
actments void (***). 

The cases show a trend toward the upholding of public v/orks 
wage laws, with the caveat that they must be carefully drafted to 
provide definiteness and certainty 



(*) 5n A.L.R. 1482 

Atkin v. Kansas (1903) 191 T ". S. 207, 43 L. ed. 148, 

24 Sup. Ct. Rep. 124. 

(pov/er of state to fix hours) 

Campbell v. Few fork City (1927) 24-, N. Y. 317, 155 

N, E. fi2G. 

Williams Engineering ana Contracting Co. v. Metz 

(1903) 193 II. Y. 143, 24 L.I..A. (ITS) 201, 35 17. E. 

1070 

Jahn v. Seattle (1332) 120 Wash. -.03, 207 Pac. ^7. 

Byars v. State (1909) 2 Okla. Crime Pep. 481, 102 

Pac. 304, Ann. Cas. 1912A, 765. 

Horris v. Lawton (1315) 47 Okla. 315, 148 Pac. 122 
'Willis v. United States (1907) 2^« TT . S. 346, 57 L. 

ed. 1047, 27 Sup. Ct. Pep. 600. 

State v. Tibbetts (l r, 20) 21 Okla. Crime Pep. 163, 

205 Pac. 776. 
(**) C-ies v. Broad (1906) 41 Wash. 448, 83 Pac. 1025 

Wagner v. Milwaukee (1923) 130 Wis. -40, 192 

II. W. 994 

Miller v. ITiven (1923) 120 Wis. 533, 194 II. W. 30 

Sehmitt & Sens v. Milwaukee (1924) 185 Wise. 119, 
"200 h.-W. R78 

Malette v. Spokane (1312) 77 Wash. 205, 137 pac. 

496 

State v. Mcilally (1396) 48 La. Ann. 1450, 21 So. 

27 

St. Louis Quarry and Const. Co. v. Frost (1301) 

90 Mo. App. 677 

Wright v. Hector (1914) 95 Kebr. 34.., 145 IT.W. 704 

Canrnia Alpha Blag. Asso. v. Eugene (1919) 9402 

80, 184 Pac. 373. 

Pe Broad (1904) 3^ Wash. 449, 73 Pac. 1004 

Milwaukee v. Hanlf (1916) 1.34 wis. 173, 159 

N.W. 319 
(***) Ex parte Xuback (1890) 85 Cal. 374, 24 Pac. 737 
(Violated freedom of contract) 

Fiske v. People (1900) 133 111. 206, 58 .I.E. 535 
(Footnote continued on following page) 



9713 



-5- 

The Connally case"{*) demonstrates the inherent danger of 
invalidation run "by penal statutes as "broad in their terms as the 
"prevailing wa e" laws, thereby indicating, at least, the inadvisa- 
bility of including criminal penalties in such laws. 

'Yhile the procedural steps taken in the Connally- case 
weaken its force as authority, the Supreme Court of the United States, 
in that case, held the Oklahoma Statute of 1921 (**) repugnant to the 
due r>rocess clause of the Fourteenth Amendment in that the mandate to 
pay "current rate of per diem wages" in the "locality" where the work 
was performed was too indefinite. This was a criminal statute and 
therefore was strictly construed. In the CanraoeAl case (***) Chief 
Justice Cardozo, in distinguishing the Conna lly case and upholding the 
Ilex: York statute said: 

"The plaintiffs would have us hold that from the throes of 
this long struggle there emerged a statute without meaning, a futile and 
deceptive gesture. Cpn:ially v. general Constr. C_o. , 2^9 TT .S. 335, 
70 L ed. 3,32, 4^ Sup. Ct. Rep. 12fi, decided by the Supreme Court of 
the United States in January, 193fi, is said to point to that conclusion. 
An injunction was there sought to restrain the law offices of Oklahoma 
from the enforcement of a penal statute. The wages paid by the em- 
ployer were $3.20 per day. The commissioner of labor complained that 
33.^0 should be accented he tiro, current rate. ' His own investigation 
showed, however, that wages varied in the locality from 33 at one 
extreme to $4.05 at the other. These were conceded facts, for the ca.se 
was heard upon demurrer to the bill. In such circumstances the de- 
cision was merely this, that in its application to that employer, the 
statute, which is very similar to our own, was too obscure and in- 
definite to sustain a charge of crime. Obscurity was thought to be 
inherent also in the 'locality'of the wor>. There was thus, in the 
view of the court, ' . double uncertainty, ' fatal to the validity of 
'a criminal statute.'" 



(***) (Violated freedom of contract) 
Cont'd McChesney v. People (1902) 200 111. 14fi, RS IT. E. R2fi 
(Violated freedom of contract) 
"lover v. People (1903) 201 111. 545, fiG S.S. 820 

(Violated freedom of contract) 
Harlan v. Employers Assn. (1932) 159 Atl. 2^7 

(Charter gave no power) 
Atty. C-en. ex rel Lennane v. Detroit (1923) 225 Mich. 
R31, 19« V. 17. 391 

(infringed state power) 
State ex rel Bramley v. gorton (1097) 50 Ho. IIP. 103 

(Violated freedom of contract) 
Frame v. Felix (1895) 1^7 Pa. 47, 31 Atl. 375 

(Charter ;,ave no power) 
Bonn v. Salt Lake City (1953) C Pac. (2d) G91 
(Charter gave no power) 
(*) Connally v. General Construction Co. (1925) 2^9 U.S. 385 
(**) Compiled Oklahoma Statutes, 1921, p-Q. 7255, 7257 
(***) Campbell v. New York City (1927) 244 17. Y. 317, 155 IT.E. 
«2S 



9713 



-6- 

Tho court then pointed out that the lav: of Hew York "/as not 
a criminal law but merely provided for the insertion in contracts, 
between the State or its civil divisions and contractors, the promise 
that "prevailing wages' 1 would be paid. 

After further discussion, the court said: 

"We do not now determine whether Connall^ v. General Constr, 
C_o. supra, stands in the way of criminal prosecution. Distinctions 
of place and circumstances may conceivably exist. If so, the time to 
draw them is not now. We put aside for the same reason the determina- 
tion of the bounds of civil liabiiit . Criteria of conduct, too 
indefinite and elastic to expose to punishment for crime, may yet be 
fixed and definite in such decree that they are not to be disregarded 
as wholly unintelligible when the question is one of the violation of 
a promise. This is not the time to attempt a definition of 'the 
prevailing rate of wages' with its background of legislative history 
and twenty years or more of practical construction. One finds it 
hard to believe that a cliche so inveterate is devoid of meaning al- 
together." 



m 



The broad terms of the public works wage laws have thrown 
iyriad problems into the laps of the courts. They have been engaged 
over a long period of years in rewriting these laws by judicial in- 
clusion and exclusion. Questions such as who is an employer, who is 
an employee, and what evidence may be admitted in determining pre- 
vailing wages, have been recently before the courts. But this is 
necessarily a slow process. The maximum effectiveness of these laws 
will be approached more speedily if the legislatures will exercise 
more care and forethought in their drafting. 

Minimum wage laws covering employees in private industry 
have been enacted by come states for woiaen and children - but not 
for men. Twenty-one states, the District of Columbia, and Puerto 
Rico have enacted this type of legislation (*). 



(*) Arkansas, Law of 1915, Act 191 

Arizona, Ch. S of Session Laws of 1923 
California, Deerings General Laws, 1931, Title 270; 
Act 3613 

Colorado, Compiled Laws, 1921, Sees. 4263-4283, 4329 
Connecticut, Cumulative Supplement to the General 
Statutes: 1931, 1935, Ch. 131a, Sees. 620b-633b. 
District of Columbia, 40 Stat, at L. 860 C. 174 Com. Stat., 
Section 3421-1/2A, Federal Stat. Anno. Supra. 1919, p. 234 
Illinois, Cahill's General Revised Statutes 1935, Chap. 48, 
338-350; made permanent oy Senate 119, approved 
July 1, 1935 

Kansas, Session Laws, 1915, Ch. 275, pp. 352-358; 
amended, 

Session Laws 1921, Ch. 263, pp. 417-419 
(Footnote continued on following page) 



9713 



-7- 



Massachusetts, General Laws 1921, Chap. 23, Sees. 1, 2, 

and. 7, Chap. 151. Replaced by "Standard" Mininura 'wage 

Act, Session Laws 1933, Ch. 308; 1935, Ch. 267. 

Minnesota, General Statutes, 1927, Sees. 4033-4034, 4210- 

4232. 

Nebraska, Session Lars 1913, Ch.211, pp. 638-642. 

Hew Hampshire, Acts of 1933, Ch. 152. 

New Jersey, Session Laws 1933, Ch. 152. 

Hew York, Cahill's Consolidated Laws of New York, 1933, 

Supplement, Chap. 32, Labor Lav.-, Article 19. 

North Dakota, Session Laws, 1919 (Ch. 174, pp. 317-322; 

Supp. to Conroiled Laws 1915-1925, Sees. 396a4, 396bl- 

396bl8). 

Ohio, Session Laws 1933, pp. 502-510. 

Oregon, Session Laws of 1913, Ch. 62, pp. 92-99. 

South Dakota, Secretary of Acriculture. Compiled Laws, 

1929, Sec. 1022-A-1022E; Session Laws, 1931, Chs. 173 

and 174. 

Texas, Gen. Laws, _ 1919, Reg. Sess. , Ch. 160, j)v. 305-309. 

Utah, Session Law's, 1933, Ch. 58. 

Washington, Session Laws of 1913, Ch. 174, pp. 602-608. 

Wisconsin, Statutes 1931, Sees. 20.57, 101.02, 104.01- 

104.12. 

Puerto Rico, Session Laws, 1919, No. 45, p. 200. 



9713 



-8- 

The laws of Nebraska and Texas were repealed in 1919 and 1921 respect- 
ively (*). , The laws .of Colorado, New Jersey, and Utah are inoperative 
through lack of appropriation,, The laws of Arizona, Puerto Rico, Xansas, 
Arkansas and the District of Columbia have been held unconstitutional* 
The Law of Minnesota has been declared Unconstitutional ' in its coverage 
of women. In South Dakota the law covers only women and girls. In five 
states (excluding those rendered inoperative by lack of appropriation) 
the law enacted is broad enough to cover all occupations (**)• In Wis- 
consin alone has the law been put into practical operation so as to 
include domestic workers. In all cases these laws provide that the 
actual designation of industries and rates sha.ll be done by an adminis- 
trative body known variously as an industrial commission or a comission 
of labor. In actual. practice the wage rates have been set for very few 
occupations. 

Tyro kinds of minimum wage laws have been enacted. The Mas- 
sachusetts law of 1921 depended upon public opinion, providing for in- 
vestigation of wages paid, determination of a fair wage after a public 
hearing, and publication in four newspapers in each county of the wage 
fixed, the findings on which it is based, and the names of employers 
who fail or refuse to accept such minimum \:p>^e a The laws enacted by 
the rest of the states, provided penalties other than moral suasion, 
in 1934 Massachusetts replaced the ublicity law by one with penalties 
(***), In general (****) t a commission was appointed to investigate 
wages paid and the cost, of living on a standard protective of the health, 
safety, and morals and to fix a wage on the cost of living basis. Any 
employer paying a wage less than that fixed by the commission would be 
subject to the penalties of the act. 

The course of the decisions of cases brought under these laws 
is a history as illogical to the legal scholar as to the layman. Upheld 
as constitutional for almost ten years, this type of legislation was 
ultinatily held' violative of the Fourteenth Amendment of the Federal 
Constitution. The first test of minimum wage legislation came in 1914, 
The State of Oregon had passed a law in 1913 providing that an Indus- 
trial Welfare Commission investigate and determine the costs of living 
on a standard which would preserve the health of women and minors, and 
fix minimum wages based on those costs of living. The commission fixed 
a minimum wage of $3.64 per week for women working in factories in the 
CiW of Portland. Prank 'Stet tier brought suit against Edwin O'liara and 
others constituting the Industrial Welfare Commission seeking to vacate 
and annul the order and enjoin, its enforcement. A demurrer was filed to 
this complaint. The issue presented to the Court was whether the min- 
imum wage law was within the police power of the State or whether it 
violated the Fourteenth Amendment or Article 1, Section 20, of the Ore- 
gon constitution, ^he lower and apellate courts sustained the demurrer, 



(*) Nebraska, Lav/ repealed in 1919 through omission of Ch. 

211 from the Civil Administrative Code. 

Texas, General Laws, 1921, regular session, Ch. 118, n.225. 
(**) California, Minnesota, Oregon, Washington, and Wisconsin 
(***) Session Laws 1933, Ch. 308; 1935, Ch. 267. 
(****) See, however, Arizona, Arkansas and South Dakota in which 

states the wages are fixed in the law. 



971' 



upholding the law. The Supreme Court of the State affirmed this position 
in 1914 (*). 

Mr. Justice Eakin in rendering the Stet-tler opinion held: 
"We think we should he bound by the judgment of the Legislature that 
there is a necessity for this act, 'that it is within the police power of 
the state to provide for the protection of the health, morals and welfare 
of women and children, and that the law should be upheld as constitution- 
al." (**) 

The Court stated that the inhibition of the Fourteenth Amend- 
ment would bar this legislation only if the enactment were without the 
police power of the state and that if the law \7ere within the police 
power of the State, the law would be constitutional notwithstanding an 
apparent conflict with the Fourteenth Amendment. (***) 

On the police power question, the Court quoted with approval 
extensively from those passages iron imller v. Oregon (****) having 
reference to the disadvantages suffered by women in employment due to 
physical structure - especially when the burdens of motherhood were upon 
bhera, and discussing their physical inferiority and dependency on men. 
The Court emoted with approval that portion of the report of the Com- 
mission on Minimum Wage Boards of Massachusetts which related the under- 
payment of women to their health and to public charity; and from Eliza- 
beth Beardsley Butler's "Women in the Trades", quoting, on Page 748 of 
the decision: 

ii* * * where girls do not have families to fall 
bach on, some go undernourished, some sell themselves. 
And the store employment which offers them this two- 
homed dilemma is replete with opportunities which in 
gradual, easy, attractive ways beckon to the second 
choice; a situation which a few employers not only 
seen to tolerate, but to encourage." 

The police power basis of this legislation was found by the Court to rest 
on morals as well as on health, a. point to be remembered in connection 
with the discussion of the Adkins case. The cases were appealed to the 
Supreme Court of the United States and were argued there in December of 
1914. They were reargued in 1917 and decided in that year by a per cur- 
iam decision reading "Judgments affirmed with costs by an equally divided 



(*) Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914) 
Simpson v. O'Hara, 70 Ore. 261, 141 Pac. 158 (1914) 

(**) 139 Pac. 743, 750, 751 

(***) Ibid, 747 

(****) 208 U.S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551. 
See also Appendix to Chapter II of this work 
for extended discussion of this case. 



9713 



-10- 

court. (Mr. Justice Brandeis took no part in the consideration and 
decision of these cases)." (*) The fact that Justice Brandeis had "been 
of counsel in these cases prevented him frori sitting. As Thonas Reed 
Powell pointed out in the "The Judiciality of Minimum-Wage Legislation", 
published in the Harvard Law Review of March, 1924, Justice Brandeis* 
views on this type of legislation were well known and had he sat, he 
would have cast the deciding vote, thereby firmly establishing the act's 
constitutionality. In that article Professor Powell went on to say: 

"Though conceivably a. favorable decision might later 
have been overruled by a differently composed Supreme Court, 
the experience is that -oolice issues of this general charac- 
ter are finally settled by such favorable decision. A four- 
to-f'our vote, however, settles nothing, except that the par- 
ticular decision below is not reversed. After this tie vote, 
the constitutional issue still remained an open one* A pro- 
phet would be confident that if the same Supreme Court bench 
had the question to decide in a case in which Mr, Justice 
Brandeis should sit, the answer would be in favor of the leg- 
islation. By reason of this confidence, he might add to it 
the further confidence that the objectors to the legislation 
would not again bring the issue to the Supreme Court until its 
personnel had changed. Such turned out to be the fact. Pour 
changes in the Supreme Court had taken place before the issue 
again came before it." 

• In the same year that the Stettler case was decided by the 
Supreme Court of the United States, the Sunreme Courts of Minnesota 
and Arkansas sustained their minimum wage laws (**)• In 1918, the 
Supreme Courts of Washington and Massachusetts sustained the minimum 
wage laws of those States (***), and in 1920 four more decisions came 
down, two reinforcing the prior decisions of the States of Minnesota 
and Washington, one holding the Texas law constitutional, and one sus- 
taining the Puerto Rico law (**-**). Tii e Puerto Rico lav/ was again 
sustained in 1921 in the case of P eople v. Porto Rican American Tobacco 
Company, 

(*) (1917) 243 U. S. 629, 61 L.Ed. 937,37 Sup. 
Ct. Rep. 475. 

(**) Willimas v. .Evans, 139 Minn, 32, 165 N.W. 495 (1917) 
. State v. Crowe, 130 Ark. 273, 197 S.W. 4 (1917) 

(***) Larsen v. Rice, 100 Wash. 642, 171 Pac 1037 (1918) 

Holcombe V. Creamer, 231 Mass. 99, 120 U.S. 354 (1918) 

(****) Miller Telephone Co. v. Minimum Wage Commission, 145 
. Minn. 262, 177 IJ.W 341 (1920) 

Spokane Hotel Company v. Younger, 113 Wash. 259, 194 
Pac. 595 (1920) 
Poye v. Texas (1920), 09 Texas Criminal Reporter 182 

(Law repealed 1921) 
People v. Alvarez (Puerto Rico) 



9713 



-11- 

Tnen came the Adkins case (*)> throwing into the discard all 
former decisions upholding the constitutionality of minimum wage leg- 
islation for women. The minimum wage law under which this case arose 
was passed by Congress on September 19, 1918 for the District of Col- 
umbia (**). While under consideration by committee no one appeared in 
opposition. Lindley Clark shows the strong support for the measure in 
his discussion of its legislative background. On Page 15 of Bulletin 
285 of the U. S. Bureau of Labor Statistics, Mr, Clark said: 

"It is suggestive to note that when the enactment of a 
minimum-wage law for the District of Columbia was being con- 
sidered by Congress in 1918, instead of opposing the! law, the 
Merchants and manufacturer's Association of the District, by 
its board of governors, took official action in favor of it, 
and wa*S represented to that effect, at a committee hearing, 
by the presence of the secretary of the Association, This fact 
was referred to as evidence that ' the lessons of experience have 
not been wasted 1 . 

"The advantage of the law most clearly anticipated by 
the enrol overs' representative was the better morale by the 
employees, and a fuller cooperation with the employer in the 
successful conduct of the business. The committee in its 
report to the House says of this action of the employers: 

'Their approval means that such legis- 
lation is recognized as being based on 
sound business principles, because it 
makes for a more efficient and more con- 
tented labor force. It also protects the 
fair and enlightened employer from under- 
bidding competitors.'" 

The House and Senate reports unanimously recommended this 
law (***), uo opposition was recorded in the House when the bill was 
passed and only twelve voted against it in the Senate (****). 

The law (*****) provided for an administrative board which 
had power to investigate -and "to ascertain and declare * * * standards 

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

(**) 40 Stat, at L. 960 C. 174: 4 Corro. Stat. 
Section 3421-gA 

(,***) House Report 571 
Senate Report 562 

(****) Vol. 56, Cong. Rec. Pt. 9, pp. 8875 et seq. ; Pt. 
10, pp. 10278 et seq. ; Pt. 12, pp. 604 et seq. 

(*****) Op. Cit., Sections 8,9,10,12 and 18. 



9713 



-12- 

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 ?;ood health and to 
protect their morals". If the investigation disclosed that a large num- 
ber of women were receiving a wage below that necessary to protect their 
health and morals, it was empowered to hold conferences with representa- 
tives of employers, emoloyees and the public. The board as a result of 
the information received at such conference was authorized to fix the 
wages for each occupa.tion and, after a pujlic hearing, could order em- 
ployers to pay tneir female employees not less than the wage fixed. 
Violation of the order was a misdemeanor, nunishable ^oy fine and im- 
prisonment. 

The administrative board, pursuant to this procedure, fixed 
the minimum wages for women in various occupations. An employee of a 
hospital and an employee of a hotel, both adults, sought an injunction 
restraining the board from enforcing its order on the ground that the 
law was unconstitutional. The Supreme Court of the District of Columbia 
denied the injunction. An appeal was taken to the Court of Appeals. 

Professor Powell tells graphically the history of the case in 
the Court of Appeals (*). 

"Then came the anomalous somersault in the case before the 
Court of Appeals of the District of Columbia. This involved the 
act of Congress applicable to the District. On the first hear- 
ing Mr. Justice RoLb was unahle to sit because of illness. 
Under statutory authority the other two Justices designated Mr. 
Justice Stafford of the Supreme Court of the District to sit in 
his place. The decision, on June 6, 1921, was two to one in 
favor of the statute. Chief Justice Smyth and Mr. Justice 
Stafford were in favor; Mr. Justice Van Orsdel was opposed. 
Motions for a rehearing were denied on June 22 of the same 
year. Three days later, Mr. Justice Rood, who had now recovered, 
wrote the Chief Justice that he was considering an application for 
a rehearing. On July, he wrote that he had decided to vote for a 
rehearing and had so notified counsel and Mr. Justice Van Orsdel. 
Later Justices Robb and Van Orsdel instructed the clerk to enter 
era order granting a rehearing. The Chief Justice dissented. 
The case was reargued on February 14, 1322, and decided on Novem- 
ber 6, 1922 (**). The vote was two to one against the Statute. 
Chief Justice Smyth in dissenting severely scored the method by 
which a. rehearing was obtained(***) ." 



(*) Ibid 

(**) Children's Hospital v. Adkins, 234 Feb. 613 
(D.C., C.A. , 1922) 

(***) "It would seem from the foregoing that the appellants, 
finding themselves defeated, sought a justice who had 
not sat in the case, but who they believed, would be 
favorable to them, and induced him, by an appeal 
directed to him personally, to assume jurisdiction 
and join with the dissenting justice in an attempt to 
9713 over-rule the decisions of the court. I shall not 

characterize such practice; let such facts speak for 

Suura. at p. 624 et seq. 



-13- 



This decision was appealed to the Supreme Court of the United 
States, the decision sustaining the Court of Appeals being handed down 
by Mr. Justice Sutherland of that body on April 9, 1923. Against the 
majority of five, three justices dissented, Chief Justice Taft and 
Associate Justices Holmes and Sanford. Justice Brandeis did not sit 
even though he was not disqualified, not having taken part in prepara- 
tion of the Adkins case. 

It should be pointed out that in enacting the Minimum Wage Law, 
the Congress was exercising a power granted it by Article I, Section 8, 
Clause 17 of the Constitution of the United States. The pertinent 
portion of this clause granted Congress nower "To exercise exclusive 
legislation in all cases whatsoever, over such district (not exceeding 
ten miles square) as may, by cession of particular states, and the accept- 
ance of Congress, become the seat of the Government of the United States 

* * * *." Clause 18 gave Congress power "To make all laws which shall 
be necessary and proper for carrying into execution the forgoing powers 

* * * *." These clauses, then were grants of plenary and exclusive 
power to enact laws necessary and proper for the District. Under en- 
actments covering the ten square miles of the District, there cannot be 
raised the question of federal ursurpation of state control over its 
geographical limits - for the District should be considered in this dis- 
cussion as a sovereign state and the Congress as its leglislature. It 

is obvious, therefore, that the power invoked by Congress in legislating 
in the District of Columbia is much greater than that used in legislating 
for the country as a whole. This noint and its implications are very 
ably discussed in the June, 1923 issue of the Virginia Law Review in an 
article entitled "District of Columbia Minimum Wage Case". 

"A few preliminary observations are necessary. Congress 
has approximately the same -oower over the District of Columbia 
that State legislature have over their respective States. Hence 
with regard to laws passed for the regulation of the District, • 
Congress lias much broader powers than it possesses when it leg- 
islates for the country as a vkcle. In national leglislation it 
is fundamental that Congress may not enact a law unless the Con- 
stitution gives it express or implied power to do so, since the 
Federal Government has only those powers which the States have, 
by the Constitution, conferred upon it. But in making laws for 
the District, Congress may pass any measure it sees fit unless 
forbidden by the Constitution to do so. One of these prohibi- 
tions is the 'due process of law' clause of the Fifth Amendment. 
The similar clause in the Fourteenth Amendment applies to the 
States as that in the Fifth Amendment applies to the Federal 
Government. For this reason, cases construing that clause in 
the Fourteenth Amendment are direct authority for this qucstion(*) . " 

George W. Goblo, in introducing his discussion of the Adkins 
case points out the wedding of due process and the police power in 
considering the constitutionality of the minimum wage legislation^). 

(*) Citing S laughter-House cases (1872) 16 Wall. (U.S.) 36 

(**) The Minimum Wage Decision, Kentucky Law Journal, November, 1923. 

9713 



-14- 



11 In to tii of these cases (Lyons and Children's Hospital) 
the constitutionality of the minimum wage act was questioned 
on the ground that it was an unjustifiable interference "by Con- 
gress with the liberty of contract. The cases involve the old 
problem of drawing the line between two contending principles - 
"the police nower on the one hand, which enables congressional 
action, and the constitutional guarantee against deprivation of 
liberty, on the other hand which denies the power of congressional 
action. Does the no lice power protect the laws' validity, or does 
the constitutional guarantee destroy it? 

"Many times it has been decided (*) that if the public health 
or morals are sufficiently needy of correction, Congress is enabled 
through the police power to furnish the correction. But if the 
public health or morals are not sufficiently needy Congress is dis- 
abled, through the constitutional guarantees to furnish the cor- 
rection. 

"In order to sustain the constitutionality of a law under 
the police power it must appear (l) that there was a general need 
for some law, ie., that there was a health evil, moral evil, or 
some other public evil which needed correction, and (2) that the 
proposed law is reasonably calculated to remedy to some extent 
this evil." 

i!r. Justice Sutherland, speaking for the majority, held that the 
fixing of minimum wages for women in private industry violated the due 
process clause of the Fifth Amendment to the Federal Constitution. 
Moreover, the majority held that a minimum wage law for women was not 
within the police power of the state, since there was not direct enough 
relation between the wages she received and her health and morals. Bar- 
bara IT. G-rimes in the July, 1933, issue of the California Law Review 
has analyzed the reasoning of the majority opinion as follows: 

"1. This Court by an unbroken line of decisions has adhered 
to the rule that an Act of Congress is not to be declared un- 
constitutional unless invalid bcyong rational doubt. 

2. The statute in question is attacked on the -round that it 
authorizes an unwarranted interference with freedom of contract. 

3. Freedom to contract is part of the liberty -orotccted by 
the Fifth Amendment to the Constitution. This is settled by deci- 
sions and is no longer open to question. 



(*) Citing iviunn v. Ill, (1876) 94 U. S. 113, 24 L. 3d. 77; 
Brass v. North Dakota (1894) 153 U. S. 391; 
German Alliance Ins. Co. v. Lewis, (1914) 233 U. S. 389; 
Block v. Hirsh, (1921) 256 U. S. 135, 65 L. 3d. 863, 



16 A. L. H. 16: 



o 



9713 



-15- 



4. Although there is no such thing as absolute freedom to 
contract, yet freedom to contract is the rule and restraint the ex - 
ception. 

5. The legislative authority to abridge this freedom can be 
justified only by the existence of exceptional circumstances. 

6. Whether these circumstances exist is the question to be 
answered. 

7. Statutes interfering with liberty of freedom to contract 
upheld by this Court in the past fall into four groups: 

Group I. Those fixing rates and charges to be ex- 
acted by businesses impressed with public interest. 

Group II. Those relating to contracts for the 
performance of public work. 

Groun III. Those prescribing the character, methods, 
and time for payment of wages. 

Group IV. Those fixing the hours of labor. 

8. In the case at bar the statute does not depend upon the 
existence of -public interest. Group I, therefore, may be laid 
aside as inapplicable. Group II involves not private but public 
contracts and may in a like manner be dismissed from consideration 
as i nap-i li cable. Group III statutes in no instance interfere with 
the liberty of the employer and employee to fix the amount of wages, 
and in no sense furnish a precedent for limitation of wages. Group 
IV statutes, fixing tie hours of labor, admittedly approach most 
nearly the line of principle applicable to the statute here in- 
volved. However, there is a vital difference between such cases 
and the case at bar; for the amount of wages to be mid and receiv- 
ed is the real heart of every contract of employment. Leglislation 
regulating hours leaves this heart of the contract untouched and so 
preserves the essential liberty of the contracting parties. 

9. The selecting of women employees in industry as a special 
class to be protected by regulatory leglislation can no longer be 
upheld. The doctrine that women of mature age may be subjected to 
restrictions uoon their liberty of contract, which could not law- 
fully be imposed in the case of men, cannot be accepted. Great, 
not to say revolutionary, changes have taken place in the contrac- 
tual, political and civil status of women, since the case of 
Mullen v. Oregon (*) and it is not unreasonable to say that the 



(*) (1903) 208 U. S. 412, 52 L. Ed. 551, 
28 Sup. Ct. Hep. 324. 



371; 



-16- 



ancicnt differences between men and women have now come almost 
if not quite to the vanishing point. 

* 

10. The argument is therefore thrown hack to the general 
question, 'Is legislation fixing a minimum wage for workers 
justifiable exercise of police power?' The answer is em- 
phatically 'Ho' because, 

Firstly, it is impossible to fix a minimum wage 
which can apply with even approximate justice to ail 
workers or to all women workers. 

Secondly, it car.no t be shown that well-paid women 
safeguard their morals any more carefully than poorly 
paid women. As a means of safeguarding morals, wage- 
fixing legislation is without reasonable basis. 

Thirdly, the legislation protects only the em- 
ployee and not the employer. It requires him to pay 
a minimum sum whether he ca.n afford it or rot. It 
undertakes to solve "out one-half of the problem and 
ignores the other half which is the problem and need 
of the employer. 

Fourthly, the declared basis of the statute is the 
securing of a living wage to the employee, whereas the 
true moral requirement, implicit in every contract of em- 
ployment, is that the amount paid shall be tne just equiv- 
alent of the service rendered. The worker is entitled to 
the worth of his labor and it violates ; sound morality that 
he should be paid more. 

Fifthly and finally, justifying the minimum wage 
connotes the power to fix maximum wages. This would be a 
dange roxis precedent." 

The dissent of Mr. Justice holmes was incisive: 

"The question in this case is the broad one, Whether 
Congress can establish minimum rates of wages for women in the 
District of Columbia with duo provision for special circum- 
stances, or whether we must say that Congress has no power to 
meddle with the matter at all. To me, notwithstanding the 
deference duo 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 could 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 
lessons. " 

After discussing the inclusion in due procoss of the "liberty 
of contract", Justice Holmes went on to state particular instances 

9713 



-17- 



of governmental interference with liberty of contract that had 
teen sustained, including the cases upholding the power of Con- 
gress to fix women's hours or work . He then pointed out: 

11 1 confess that I do not understand the principle on 
which the power to fix a minimum for the wages of women can 
he 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 distinc- 
tions of degree, hut I nerceive no difference in the kind of 
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 need more than the Nineteenth Amendment to 
convince me that there are no differences between men and 
women, or that leglislation cannot take those differences 
into account. I should not hesitate to take into account if 
I thought it necessary to sustain this Act. Quong Viing 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. Hew York , 198 U. S. 45, would be allowed a 
deserved repose." 

Mr. Chief Justice Taft dissented in vigorous fashion: 

"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 prick- 
ing 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. 

"Lesislatures in limiting freedom of contract between 
employee and employer by a minimum wage proceed on the assump- 
tion 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 nrone 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. How, 
I agree that it is a disputable question in the field of polit- 
ical 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. " 

The Chief Justice's discussion of the line of decisions 

9713 



-18- 



in the field of maximum hours is worthy of repetition: 

"The right of the legislature under the Fifth end Four- 
teenth 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 Hold en v. Hard y, 169 U. ".i. 366, it was applied to miners 
and rested on the unfavorable environment of employment in 
mining and smelting. In Loc hner v. 21 ew York , 198 J. S. 45, 
it was held that restricting those employed in bakeries to ten 
hours a day was an arbitrary and invalid interference with the 
liberty of contract secured "oi 7 the Fourteenth Amendment. Then 
followed a number of cases beginning with Muller v. Oregen , 
208 U. S. 412, sustaining the validity of a limit on maximum 
hours of labor for women to which I shall hereafter allude, 
and following these cases came B unting v. Oregon , 343 U. S. 426. 
In that case, this Court sustained a lav/ limiting the hours of 
labor to any person, whether man or woman, working in any mill, 
factnry or manufacturing establishment to ten hours a day with 
a proviso as to further hours to which I shall hereafter advert. 
The lav; covered the whole field of industrial employment and 
certainly covered the case of persons employed in bakeries. 
Yet the opinion in the Bunting case does not mention the Loch- 
ner case. Ho one can suggest any constitutional distinction 
between employment in a bakery and one in any other kind of a 
manufacturing establishment which should make a limit of hours 
in the one invalid, and the same limit in the other permissible. 
It is impossible for me to reconcile the Bunting case and the 
Lochner case and I have always supposed that the Lochiier case 
was thus overruled sub silen tio. Yet -the opinion of the Court 
herein in support of its conclusions quotes from the opinion 
in the Lochner case as one which has been sometimes distinguish- 
ed but never overruled. Certainly there was no attempt to dis- 
tinguish it in the Bunting case. 

"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 con- 
tract. I regret to be at variance with the Court as to the 
substance of this distinction. In absolute freedom of con- 
tract the one term is as important as the other, for both enter 
equally into the consideration given and received, a restric- 
tion as to one is not any greater in essense than the other, 
and is of the same kind." 

The Adkins case marked the turning point in the courts' atti- 
tude toward minimum wage leglislation for women. 

Two years later the minimum wage law of Arizona was appealed 
to the United States Supreme Court. (*) A per curiam decision 



(*) Murphy v. Sarsell (1925) 269 U. S. 530. 
9713 



-19- 



v;as handed down reading: 

"The Judgement of the District Court is Af- 
firmed upon the authority cf Adkins v. Children's 
Hospital , 261 U. S. 525. Mr. Justice Holmes re- 
quests that it he stated that his concurrence is 
solely upon the ground that he regards himself hound 
hy the decision in Adkins v. Children's Hos'oital . 
Mr. Justice Brander 1 s dissents." 

This decision construed the Fourteenth Amendment to forbid the 
enactment hy states of minimum wage laws for women, as the Adkins 
case had construed the Fifth Amendment. The sovereignty of the states 
no longer extended to laws on that subject within their own "borders. 

To complete the picture, the Arkansas minimum wage law was tested 
in the Supreme Court in 1927 ^n a "last chance" theory that the court 
might reverse itself. (*) It did not. The Arkansas law was voided 
on the same ground. 

Meanwhile, state and district courts had not "been lax in following 
the Adkins decision. 

In 1924 the Wisconsin and Puerto Rico statutes were held uncon- 
stitutional. (**) In 1925, the laws of Kansas and Minnesota were 
declared void, although the Minnesota law was held constitutional in its 
application to minors. (***) 

Following the Adkins case the laws of but two states, enacted prior 
to 1S33, were sustained. (****) 



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

(**) Folding Furniture Co. v. Industrial Commission, (1924) 300 Fed. 
991. People v. Laurnaga & Co., successors, limited (Puerto 
Rico) 32 P. R. Rep. 766. 

(***) Topcka Laundry Co. v. Court of Industrial Relations (1925) 119 
Kansas 12. Stevenson v. St. Clair (1925) 161 Minn. 444. 

(****) Massachusetts - (1924) Commonwealth v. Boston Transcript, 249 
Mass. 477 (Case turned on non-mandatory nature ef Mass. law) 
California -(1924) Gainer v. A. 3..C. Dohrman et al. 
(Though sustained in lower courts, was dropped before it 
reached the Supreme Court of the State) 



9713 



-20- 

In 1921, the Supreme Court of Kansas was called unon to decide 
the constitutionality of a compulsory arbitration statute under which 
wages were fixed by a Court of Industrial delations (*) and the pack- 
ing industry, among others, was legislatively declared to be affected 
with a -oublic interest. 

This was an original proceeding to compel the defendant to put 
into effect a scale of wages to be -naid by it to its employees and to 
establish hours of labor as ordered by the plaintiff. The defendant 
in its answer raised a number of ouestions of law, to be disposed of in 
advance of the final hearing, 

The defendant operated a packing house in Topeka. It argued 
that plaintiff could not exercise the extraordinary power of regulat- 
ing wages except in cases of emergency and it was claimed that no 
emergency was alleged. The court in referring to the netition said it 
was alleged that complaint in ,-, riting was made oy certadn persons 
authorized by section 7 of the Industrial Court Act to make such 
complaint. The complaint alleged that a controversy had arisen be- 
tween defendant and its employees engaged in the operation of defend- 
ant's packing business and that the controversy had endangered the 
continuous operation of the packing plant and affected the manufacture 
and production of the commodities necessary for human food within the 
City of Kansas and endangering the orderly operation of the packing 
plant. The court said that the petition sufficiently alleged that an 
emergency had arisen which justified the industrial court in taking 
cognizance of the complaint. 

The defendant contended that the order sought to be enforced 
violated the Fourteenth Amendment of the Constitution of the United 
States in that it deprived the defendant oi its property without due 
process of law and denied to it the protection of law. In support of 
this contention it wa.s claimed that wages of the employees were not 
affected with a public interest so as to subject such wages to regula- 
tion by the State, that the law and order deprived defendant and its 
enroloyees of the freedom of contract concerning wages and that the 
classification of the business to which the law applied was arbitrary 
and unjust. The court in its o-oinion said: 

"The basis of the contention that the defendant's 
employees cannot be governed by the industrial court is 
that those employees cannot be compelled to -7ork for the 
wages fixed, while the defendant is compelled to operate 
its plant and to pay those wages. 

"An analysis of these statutes reveals that the defend- 
ant is restricted from doing certain things with the inten- 
tion of violating the law, o^ in other words is restricted 
from doing those things prohibited by the law. But the 



(*) The Court of Industrial Relations v. Chris. Wolff Packing Co. (Sup. 
Ct. of Kansas, 1921) 201, Pac. 418. 

9713 



-21- 

defen&ant is not, by the law, compelled to operate its 
plant at a loss, nor is it prohibited from changing its 
business, no 1 " from quitting the business, if -it desires 
to do. either of these things in' good faith, not intending 
thereby to violate any provision of the act. The language 
of the act will bear this construction; it will uphold the 
validity of the act and not deorive the defendant of any 
constitutional right that has been urged by it." 

The court said that the law governing public service corporations 
was analogous to the law here under consideration and pointed out that 
the authorities led to the conclusion that public utilities could be 
compelled to operate but not at a loss, that control of public service 
corporations was justified by the fact that they were affected with a 
public interest. The packing company was not a public service corpora- 
tion but the legislature had declared its business affected with a 
public interest and for that reason it assumed to exercise control 
over it. 

In regard to the defendant's contention -that the •compensation 
paid to its employees was not affected with a public interest the 
court said: 

"The state may control the rates to be charged by 
those who are engaged in a ousiness affected with a public 
interest. Wages is one of the largest factors that go to 
make up the expense of conducting a business, and must be 
considered in determining what the rate shall be. In many 
instances wages cannot be increased unless rates or charges 
are increased, and in many instances rates or charges cannot 
be decreased unless wages are 'decreased. In all business 
enterprises affected with a public interest rates or charges 
and wages are so bound together that they cannot be sepa- 
rated. Rates cannot be completely controlled unless wages 
are controlled, and wages cannot be controlled unless 
charges are controlled." 

The court also pointed out that numerous laws establishing 
minimum '-'ages for women had been passed and upheld ~oy the courts. 
In regard to this the court said: 

"Laws fixing minimum wages and hours of labor for women 
are justified on moral and physical grounds; laws fixing 
wages for men may be justified on similar although not the 
same ground. Sex is a proper basis for classification of 
the subjects of this kind of legislation, but it does not 
answer constitutional objections. The dangers to a man while 
working should be reduced to a minimum; the conditions under 
which he labors, so far as possible should be conducive to 
health and comfort. Intensive work of either mind or body, 
or ooth, should not be continued beyond his powers. A labor- 
ing man with a family, "for honest work, should receive wages 
sufficient to enable him to feed, clothe, and shelter his 
family, and educate his children. If the wages received by 
him are not sufficient to do these things, he becomes 

9713 



-22- 

discontented, and the evil consequences that flow from 
such discontent may follow. The state should -- it does — 
nave power to protect laboring men to the sane extent 
that it protects working women. " 

The court also said that if under the commerce clause of the 
Federal Constitution,, Congress could regulate wages and hours of those 
working on railroads the state under the -oolice powers should be able 
to regulate the wages and hours of labor of those working in a packing 
plant operating wholly within the state, that legislation to meet 
emergencies arising in the state similar to tnose arising in the nation 
ought to "be upheld for reasons the same or similar to those in 
Wilson v. IJew . 

The demurrer to the answer was susta.ined. 

This case, after evidence taken, wa.s brought before this court 
again in 1922, 207 Pac. 806. The evidence showed that prior to the 
making of the order the defendant had been operating its plant at a 
loss and the order of the court increased the rates of wages to be paid 
to its employees. The question considered was: Is the order invalid 
for this reason? In holding the order to ue valid the court said: 

"Compelling a public service corporation to render 
service at a loss is a violation of the prohibitions contained 
in the Fourteenth Amendment; but rates and wages are not the 
same. Rates are compensation paid by those who desire the 
services of public service corporations for the services of 
public service corporations. Wages, for the purposes now 
under discussion, are that part of the cost of the finished 
product given to those who perform service in its production. 
Another way of distinguishing the two is that rates are the 
prices paid to puolic service corporations for their finished 
product; wages are that part of the cost of the finished 
product given to those who perform service in its production. 

"The operators of a packing plant cannot by law be com- 
pelled to sell the finished product of their plant at a price 
that will not allow them a fair return upon the investment, 
but ttrt does not say that those operating the packing plant 
cannot be compelled by law to pay a living wage to their 
employees, notwithstanding the fact that the plant is being 
operated at a loss. An industry o p any kind that cannot be 
operated except at the sacrifice of its employees ought to 
quit business. An industry ought not be permitted to recoup 
its losses out of the wages of its employees, where those 
employees are in such a condition that they cannot prevent it." 

From the decision o 1 ' the state court the defendants appealed to 
the Supreme Court of the United States, 262 U. S. 522. 

The statute was held invalid in an opinion written by Mr. 
Chief Justice Taft. In the opinion it was pointed out that the right 
of the employer on the one hand and of the employee on the other to 
contract about their affairs was curtailed, that this was a part of the 

9713 



-23- 

liberty of the individual -'hich was protected by the guaranty of the 
due process clause of the Fourteenth Amendment, that the mere declara- 
tion "by a legislature that a business is affected with a public 
interest is not conclusive of the question whether its attempted 
regulation on that ground is justified. The court in holding that the 
defendant was not clothed with such public interest as to permit the 
regulation herein attempted said: 

"To say that a business is clothed with a public 
interest, is not to determine what regulation may be 
permissible in view of the private rights of the owner. 
The extent to which an inn or a cab system may be regulated 
may differ widely from that allowable as to a railroad or 
other common carrier. It is not a matter of legislative 
discretion solely. It depends on the nature of the business, 
on the feature which touches the public, and on the abuses 
reasonably to be feared. To say that a business is clothed 
with a public interest is not to import that the public may 
take over its entire management and run it at the expense 
of the owner. The extent to which regulation may reasonably 
go varies with different kinds of business. The regulation 
of rates to avoid monopoly is one thing. The regulation 
of '^ages is another. A business may be of such character 
that only the first is permissible, while another may involve 
such a possible danger of monopoly on the one hand, and such 
disaster from stoppage on the other, that both come within 
the puolic concern and power of regulation. 

"But the chief and conclusive distinction between 
Wilson v. New and the case before us is that already referred 
to. The power of a legislature to compel continuity in a 
business can only arise where the obligation of continued 
service by the owner and its employees is direct and is 
assumed when the business is entered upon. A common carrier 
which accepts a railroad franchis e is not free to withdraw 
the use of that which it has granted to the public. It is 
true that if operation is impossible without continuous loss, 
Brooks-Scanlon Co e v. Railroad Commission , 251 U. S. 396; 
Bullock v. Railroad Commission , 254 U. S. 513, it may give 
up its franchise and enterprise, but short of this, it must 
. continue. Hot so the owner when by mere changed conditions 
his business becomes clothed with a public interest. He may 
stop at will whether the business be losing or profitable." 

The judgment of the lower court was reversed. 



9713 



-24- 

Ir. 1933 spurred by the econonic depression which caused in- 
creased interest in social legislation a renewed impetus rr a.s given to 
mini-rum ware legislation. The Stater- of Connecticut, Illinois, Hew 
Hampshire, Hew Jerse^, He -r Yor\' and Ohio enacted into law, with modi- 
fications, the "STA_3AhD hlhlhUh T7A"I BILL POP; W0L3U ACT hllTORS", (*) 
drafted by the National Consumers' league and approved by the Interstate 
Conference on Labor Compacts and the United States Department of Labor. 
In 1953 Massachusetts replaced its non-mandatory "publications" minimum 
wage lav by a modified version of the standard minimum wage bill. On 
May 29, 1934 the general court of Massachusetts ratified the interstate 
compact on minimum wages which war- rigned in Concord, Hew Hampshire, by 
delegates from Connecticut, Maine, Massachusetts, Hew Hampshire, " T ew 
York, Pennsylvania and Phode Island. In 1935 minimum wage bills were 
introduced in a number of states, and although not enacted into law by 
any stake, bills passed one house in Michigan and in Pennsylvania. In 
this year the Illinois minimum wage law of 1°33 which had. rn expiration 
date of July 1, 1935 was amended by repeal of the expiration date, making 
this law permanent. 

•The national Consumers' league gives a concise analysis of the 
law. 

"Section 1 of the Law sets forth the Industrial con- 
ditions that demand minimum wage legislation. The inequality 
of their bargaining power with their employers coerces large 
numbers of women and minor workers to accept as "ages pretty 
much whatever is offered, hove Tr er pitiably unfair and however 
much they depart from the fair equivalent for the value of the 
services rendered. The absence of fair wage standards not only 
undermines the health and wel 1 -being of the workers but threatens 
the stability of industry itself. The present depression has led 
many employers to appeal to the state for the establishment of min- 
imum wage standards as a protection to them against the unfair 
methods of competition of ruthless and \m scrupulous competitors. 

Section 2 outlines the circumstances that -"Pi' be taken 
into account in determing what is a. fair wage. In -particular it 

provides that wages 'paid for work of lM-e or com/parable character 

by employers who voluntaril" maintain minimum fair wage standards 
may be considered . This is intended to emphasize the practical 
character of the proposed act. It seeks no abstract standard; it 
is designed to assist the efficient and- scrupulous employers to 
evolve fair sta.nda.rds where practicable from within the industry 
itself. 

Section 3 declares the genera] policy of the state against 
the employment of any woman or minor for less than the fair value 
of the service to be rendered save th?t the state does not at- 
tempt to regulate fair ve.l-xe if the wages paid, are above the sub- 
sistence level. 

(*) For complete tent, see Appendix to this Chapter pp. 53-60 



9713 



-25- 

Sections 4 and 5 give to the Industrial Commissioner 
full and adequate investigatory powers to investigate the 
wages of women and minors. If lie is of opinion that the wages .. 
of a substantial number in any occupation are not fair and pre 
less than the cost of subsistence, he nay appoint a wa^e hoard 
to rewort on the establishment of minimum fair rage standards. 

Section 6 outlines the methods of selection and the modes 
of the representative rage boards. 

Sections 7 and 8 describe the procedure to be followed 
by the Industrial Commissioner in acting u:>on the reports of 
the rage boards, and authorize the Industrial Commissioner to 
make necessary regulations to carry out the reports of the 
rage boards. 

Section 9 provides for special licenses for those rhose 
earning power is impaired. 

Section 10 outlines the procedure to be followed in giv- 
ing publicity to the non-observance of any directory wage orders, 

Section 11 empowers the Industrial Commissioner at any 
time after a directory minimum wage orcer has been in effect 
for nine months to make such wage order mandatory if in his 
judgment persistent non-observance is a threat to the main- 
tenance of the established standards. 

Sections 12 and 13 provide for trie revision of wage oi-der 
and administrative regulations from time to time. 

Sections 14, 15, 16, 17 and 18 include provisions for the 
review of questions of law, for the keeping of records by the 
employers, for penalties and civil redress, and for the se- 
parability of the act in case any portion is declared unconsti- 
tutional. n 

In support of the constitutionality of this oil"' , it urges 
the following: 

"The Standard Minimum T7agt Law for women and minors does 
not attempt to regulate wages generally. It does not fix a 
living wage irrespective of the na f ure of the work done or 
the value of the services rendered. Only where a substantial 
number of women or minors in any occupation are receiving less 
than a subsisting wage, nay an investigation be made to deter- 
mine whether the wages are fairly commensurate with the value 
of the service rendered. If such investigation finds that they 
are not, a representative wage board, acting on convincinr 
proof, may recommend to the Industrial Commissioner the estab- 
ment of minimum fair wage standards for such occupation. 
After a hearing, the Industrial Commissioner may nut into effect 
such minimum fair wage standards. For at least nine months the 
standards are director only, to be vindicated, that is, only 



3713 



-26- 

by force of publicity, if after such trial period, non- 
observance is so persistent as to threaten the maintenance 
of the standards established, the Industrial Commissioner 
nay, after a public hearing, make the observance of the 
standards mandator/ and their violation subject to the 
penal law. 

The Law permits differentiation in classes of services, 
lower minimum standards for learners and apprentices and 
special licenses for those whose earning power has been im- 
paired. The rights and interests of every group affected are 
scrupulously dealt with and safeguarded. To paraphrs.se the 
language of Mr. Justice Butler in Highland v. Russell Car and 
Snow plow Co., 279 U. S. 253, 262, the Law 'will be deemed to 
have deprived' an employer 'only of the right or opportunity 
by negotiation 1 to pay less than the fair value of the service 
received. 

The Law does not set up any arbitrary wage standard. 
In determining a fair wage, a wage fairly and reasonably 
commensurate with the value of the service rendered, all 
relevant circumstances affecting the value of the service 
rendered may be considered. This accords with the tradition- 
al method of Anglo-American law of applying the standard of 
reasonableness. It is the practice that has governed the 
determination of rates for common carriers and of suits upon 
a quantum meruit for centuries. It is a practice that has 
guided wage boards for decades in other English-speaking 
countries, without own traditions of fair play and adequate 
scope for freedom of contract. 

The Law is the result of a. conscientious and nature 
effort by counsel for the T ational Consumers' League to 
meet the objections which a "iajority of the Supreme Court 
found against the District of Columbia, law in Ad 1 -: ins v. 
Children's Hosuital . 261 U. S. 525. Vo one, of course, 
can venture certain prophecy in regard to a future action 
of the Supreme Court, particularly in a field so uncertain 
as that affecting minimum wage laws, for it is important 
to recall that only five members of the Supreme Court joined 
in the majority decision in the Adkins case over the very 
vigorous protest of Chief Justice Taft. But it is difficult 
to understand the references in the majority opinion by Mr. 
Justice Sutherland to the value of the service rendered save 
as a plain intimation that a properly drawn fair wage statute, 
such as is now proposed, would not run counter to the Adkins 
case. Mr. Justice Sutherland expressly states (261 U.S. 525, 
559) that a statute requiring an ervolo^er to pay in money, 
to pay at prescribed intervals, to pav the value of the ser- 
vices rendered, even to r?ay with fair relation to the extent 
of the benef itobtained from the service, would be understand- 
able." 



9713 



The modified standard minimum wage lav? enacted by Hew York 
i?as tested in the case of People ex rel Tipaldo v. korcheakl . (*) 
On July .71, 1935 a decision wa,s rendered by Mr. Justice May holding 
the Ian constitutional. The case arose on a habeas corpus instituted 
by the nanager of a laundry in Brooklyn who imprisoned under the law 
for altering records to conceal the fact of his paying adult women less 
than the minimum wage fixed for that class pursuant to the law. The 
manager asserted that the statute contravened the 14-th Amendment of the 
Federal Constitution and article 1, section 6, of the Constitution of 
the State of Few York, in that it deprived him of liberty and property 
without due process of law, He relied strongly on the Adkins case. 
The court in quoting from the Adkins case found a loop hole in the state- 
ment "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 * v '* * *". After stating 
that the abridgement of freedom of contra.ct might be sanctioned "b Tr the 
existence of exceptional circumstances", the court said: 

"An attempt to exhaustively review the substance of oral 
and written characterizations of the effect of the world-wide 
depression would serve no useful purpose. The court may take 
judicial notice that almost without warning it came upon man- 
kind with an unforeseen and irresistible onrush that bound 
and fettered the world in its devastating grip. Business co- 
llapsed, our conceptions of economic and social securities were 
shattered, peace of mind was transformed into dread apprehension, 
contentment into unrest, comfort gave way to hardship and suf- 
ficiency to privation. As a result of this universal catastrophe, 
thousands of women reared to a life of ease, maintained in com- 
fortable surroundings inexperienced with the hardship of poverty, 
with no occupational training and with no business experience, 
suddenly found themselves engulfed in the whirlpoop of industrial 
strife-, forced there Jo-j a. calamity of hitherto unknown magnitude, 
compelled to there engage in a. merciless and to them unfamiliar 
competition. 

"Do the dictates of reason and the common experience of 
mankind impel the conclusion that under these conditions these 
women are on a, parity "ith men in their ability to distinguish 
between legitimate and unscrupulous business practices, between 
the honest and dishonest employer, between fair dealing and 
chicanery, between 'an oppressive' and unreasonable wage* and a. 
•fair wage' as defined in the act?' The Legislature has answered 
the inquiry in the negative as evidenced by the "last sentence 
in section 550, which reads: 'In the considered judgment of the 
Legislature this article is constitutional. 1 

"This declaration, unusual in a statute, indicates a 
legislative. familiarity with the decisions of the higher courts 

(*") 2C2 7ew York Sudw. 576 



5713 



-28- 

with reference to legislation <->f this general character and 
amounts to a pronouncement that in the Legislature's opinion, 
the act in so far as it interferes with liberty of contract, is 
justified as a reasonable exercise of the polices power by the 
existence of these 'exceptional circumstances. 1 

"The act evidences a humane legislative intent to amelior- 
ate human distress by affording a measure of security to women, 
who, by reason of unprecedented adverse conditions existing at 
the time were unable to adequately protect themselves in an in- 
dustrial life, in which, as compared with men, they were at a 
disadvantage. Thus its ultimate purpose was to protect "omen 
from unscrupulous employers through the medium of a compulsory 
wage reasonably commensurate with the services rendered, and 
also to protect industry from evils which are frequently fol- 
lowed by unfair competition mode posnible by the exploitation 
of a designated class of employees. It would seem that public 
welfare is enhanced by legislation based upon human consider- 
ation of this character, legislation justified as an exercise 
of the police power. The Adkins case was decided at the time 
of an era of comparative prosperity. This court is not -ore- 
pared to assert that the same conclusion would have been re- 
ached had economic and industrial conditions then been as they 
were at the time of the enactment here involved." 

The court found that this act was within the police power of the 
legislature, as an attribute of sovereignty of the state. 

"The police power is inherently vested in the Legislature. 
It was never surrendered by the several states and consequently 
its free exercise is not necessarily impeded by the 14th amend- 
ment to the Federal Constitution. Through the exercise of this 
power 'the state may regulate the relative rights and duties of 
all persons within its jurisdiction, so as to guard the public 
safety, protect the public morals, secure the public welfare and 
promote the common good and welfare.' (People v. Byrne, 99 Misc., 
1: Jacobson v. I'ass., 197 U. S. 11, p. 25: People v. Adirondack 
R'y Co., 160 IT. Y., 225 p. 236) 

"In the case last cited, in speaking of the po v 'er of tax- 
ation, the police power and the power of eminent domain, the 
court said that 'these powers' * * * * underlie the Constitution 
and rest upon necessity because there can be no effective gov- 
ernment without them. They are not conferred by the Constitution 
but exist because the state exists, and they pre essential to its 
existence. They are not rights reserved, but rights inherent in 
the state as sovereign. While they may be limited and regulated 
by the Constitution, they exist independently of it as a neces- 
sary attribute of sovereignty. The T ,r belong to the State because 
it is sovereign, and they are a necessity of government. The 
State cannot surrender them, because it cannot surrender a sover- 
eign power. It cannot be a state without them. They pre as 
enduring and indestructible ps the state itself." 



9713 



■29- 



Al though the question was not involved, the court offered 
gratuitous dictum on the delegation of legislative never: 

"Although the question is not here raised it nay not he 
inappropriate to p-v that it does not appear that the min- 
imum page law evidences an unwarranted delegation of Legis- 
lature power to an administrative bo-rd or hody. The act does 
not authorize the exercise of unlimited discretion in an un- 
defined field. On the contrary a standard is prescribed. 
That standard is found in the definition of 'a fair wage, ' 
which limits the authorized discretion of the administrative 
hody within the confines indicated by the definition. In 
this resoect the act is not defective for the reasons advanced 
in the recent decision of the United .States Supreme Court in 
the Schechter case." 

The case was argued in the Court of Appeals (State Court of 
last resort) on January £3 of this yee.T and decision is awaited. 

Prior to ''IPA the only attempt at federal regulation of ninimum 
wages in other than public enterprise, in contrast to the state enactments 
previously discussed, was the Adams on Act. But this act is not a ^osetta 
stone to solve the question of constitutionality of minimum wage legis- 
lation. This Law was enacted in September of 1916 at the request of 
President Uilson, who sought thereby to obtain a means of averting a 
threatened general strike of railroad employees. (*) 

The Act provided that, beginning with January 1, 1917. "Eight 
hours shall in contracts for labor and services be deemed a day's work for 
the purpose of reckoning the compensation for services of all employees * 
* * who a.re now or may hereafter be actually engaged in any capacity in 
the operation of trains usee 5 for the transportation of persons or property 
on railroads" in interstate commerce (**). 

Section 2 of the Act provides for the appointment of a commission 
of three to observe' the operation and effect' of the provisions of the first 
Section for a period of not less than 6 nor more than 9 months. The re- 
cords to be reported to the President and Congress. 

Section 3 provided that pending the report of the commission 
and for a. period of thirty days thereafter "the compensation of the rail- 
nay employees subject to this Act for a standard 8-hour work-day shall not 
be reduced below the present standard day's wage, and for all necessary 
time in excess of 8 hours such employees shall be paid at a rate not less 
than the pro rata share for such standard 8-hour work-day". 

This Law was tested in the case of TTilson v. Few , which, a.fter 
being held unconstitutional in the lo r er court, was sustained in a 5 to 4 
decision in the Supreme Court of the United States. (***)/ The plaintiff 
in this action was the United States Attorney for the Western District of 



(*) 39 Stat. 721 

(**) Section 1, supra 

(***) 243 U. S. 332~(1917) 

9713 



-30- 

Missouri. The defendants were receivers for the Missouri, Oklahoma 
and Gulf Railway Co. The suit involved an injunction to re- 
strain the enforcement of the Adamson Act. 

The Court, through I.Ir. Chief Justice White, saici at Pages 340 
and 341: 

"Was there cower in Congress, under the circumstances 
existing, to deal' with the hours of work and wages of rail- 
road enrol oyees engaged in interstate commerce, is the prin- 
cipal question here to "be considered, Irs solution, as well 
as that of other questions which also arise, will be clari- 
fied by a brief statement of the conditions out of which the 
controversy arose. 

"Two systems controlled in March, 1916, concerning wages 
of railwoad employees; one, an eight-hour standard of work and 
wages with additional nay 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 65 -percent of the reads. The or- 
ganizations representing the employees of the railroads in that 
month made a formal demand on the employers that, as to all en- 
gaged 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 al- ■ 
lowance for overtime, calculated by the minute at one and one- 
half times the rate of the regular hours' service, be estab- 
lished. The demand made this standard obligatory on the rail- 
roads, 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 issues which confronted the Court were summed up as follows: 

"All the propositions relied upon and arguments advanced 
ultimately come to two questions; first, the entire want of 
constitutional power to deal with the subjects embraced by 
the statute, and second, such abuse of the "oower, if possess- 
ed, as rendered it-s exercise unconstitutional. " o. 343. 

After conceding that the agreement of wages is primarily private 
and usually not to be prevented or controlled by public authority, the 
Court said at Page 347 i 

"But, taking all these propositions as undoubted, if 
the situation which we have described and with which the 
act of Congress dealt be taken into view, - that is, the 
dispute between the employers and employees as to a stan- 
dard of wages, their failure to agree, the resulting ab- 
sence of such standard, the entire interruption of inter- 
state commerce which was threatened and the infinite in- 
jury to the public interest which was imminent, - it would 
seem inevitably to result that the power to regulate nec- 
essarily obtained and was subject to be applied to the ex- 

9713 



-31- 

tent necessary to provide a remedy for the situation, which 
included the power to deal with the dispute, to -provide "by 
appropriate action for a standard of wages to fill the want 
of one caused "by the failure to exert the private right on 
the subject, and to give effect by appropriate legislation 
to the regulations thus adopted." 

But here, said the Court, was a situation where there had been no 
agreement which would result in possible damage. (Page 348): 

"This must be unless it can be said that the right to 
so regulate as to save and protect the public interest did 
not apply to a case where the destruction of the public 
right was imminent as the result of a dispute between the 
parties and their consequent failure to establish by pri- 
vate agreement the standard of wages which was essential; 
in other words, that the existence of the public right and 
the public power to preserve it was wholly under the control 
of the private right to establish a standard by agreement." 

The Court, at Page 350, pointed out that the regulation was nec- 
essary to prevent a stoppage of interstate commerce: 

"Again, what purpose would be subserved by all the 
regulations established to secure the enjoyment by the 
public of an efficient and reasonable service if there 
was no power in government to prevent all service from 
being destroyed? Further yet, what benefits would flow 
to society by recognizing the right, because of the pub- 
lic interest, to regulate the relation of employer and 
employee and of the employees among themselves, and to 
give to the latter peculiar and special rights safeguard- 
in their persons, protecting them in case of accident, 
and giving efficient remedies for that purpose, if there 
was no power to remedy a situation created by a dispute 
between employers and employees as to rate of wages, which, 
if not remedied, would leave the public helpless, the whole 
people ruined, and all the homes of the land submitted to a 
danger of the most serious character? And finally, to what 
derision would it not reduce the proposition that government 
had power to enforce the duty of operation if that power did 
not extend to doing that which was essential to prevent oper- 
ation from being completely stopped by filling the interreg- 
num created by an absence of a conventional standard of wages, 
because of a dispute on that subject between the employers 
and employees, by a legislative standard binding on employers 
and employees for such a time as might be deemed by the leg- 
islature reasonably adeauate to enable normal conditions to 
come about as the result of agreements as to wages between 
the parties?" 

The Supreme Court continued: 

"If it be conceded that the power to enact the statute 

9713 



-32- 

was in effect the exercise of the right to fix wages where, 
by reason of the dispute, there had teen a failure to fix by- 
agreement, it would simply serve to show the nature and char- 
acter of the regulation essential to protect the public right 
and safeguard the movement of interstate commerce, not invol- 
ving any denial of the authority,, p. 352 

"In other words, considering comprehensively the situation 
of the employer and. the employee. in the light of the obligations 
arising from the public interest and of the work in which they 
are engaged, and the degree of regulation which may be lawfully 
exerted by Congress as to that business, it must follow that the 
exercise of the lawful governmental right is controlling. This 
results from the considerations which we have previously pointed 
out, and which wc repeat, since,, conceding that, from the Doint 
of view of the private right and private interest, as contra- 
distinguished from the public interests the power exists be- 
tween the parties , the employers and employees, to agree as to a 
standard of wages free from legislative interference, that right 
in no way affects the lawmaking power to protect the public 
right and create a standard cf wages resulting from a dispute 
as to wages and a failure therefore to establish by consent a 
standard. The capacity to exercise the private right free from 
legislative interference affords no ground for saying that leg- 
islative power does not exist to protect the public interest 
from the injury resulting from a failure to exercise the private 
right, In saying this, of course, it is always to be borne in 
mind that, as to both carrier and employee, the beneficent and 
ever-present safeguards of the Constitution are applicable, and 
therefore both are protected against confiscation and against 
every act of arbitrary power which, if given effect to, would 
amount to a denial of due process, or would be repugnant to any 
other constitutional right. And this emphasizes that there is 
no question here of purely private right, sinr.e the law is con- 
cerned 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 ex- 
tent that the power to do so is appropriate or relevent to the 
business regulated, pp. 353, 354. 

"Being of the opinion that Congress had the power to adopt 
the act in question, whether it be viewed as a direct fixing 
.of wages to meet the absence of a standard on that subject, re- 
sulting from the dispute between the parties, or as the exertion 
by Congress of the power which it undoubtedly possessed to pro- 
vide by appropriate legislation for compulsory arbitration, - 
a power which inevitably resulted from its suthority to protect 
interstate commerce in dealing with a situation like that which 
was before it, - we conclude that the court below erred." p. 359. 

The Court thus disposed of the questions of the inherent right of 
Congress to enact this legislation and found that this statute did not 
violate due process of law. Mr. Justice McKenna wrote a short concurr- 
ing opinion. Messrs. Justices Day, McReynolds, and Pitney wrote dis- 
senting opinions. Mr. Justice Van Devanter concurred with Mr. Justice 
Pitney in his dissent. 
9713. 



— 33— 

RESUME 

Prevailing wage rate laws covering public works may be enacted "by 
the states and "by the Federal Government pursuant to their authority to 
make contracts. Such laws have "been enacted in 31 of the States, terri- 
tories, and possessions. They vary in their terms and are difficult of 
administration, since the indef initeness of "prevailing wages" leads to 
differences of opinion which must "be resolved by administrative action. 
These laws have "been strictly construed since they usually provide penal 
enforcement. The constitutions of the states must clearly and definitely 
show no restrictions on the power to enact such laws, since otherwise 
they will be held unconstitutional and an amendment will be required, as 
witnessed by the New York constitutional amendment. These enactments 
are restricted in their application and do not cover all types of public 
contracts and all tynes of employees working under such contracts. ¥ith- 
in the limits of constitutional authority, the laws may be broadened so 
as to include more employees. They are not limited as to sex or age and 
may, therefore, cover men, women, and children. Uith the expansion of 
public works witnessed in the past three years, their maximum effective- 
ness is desirable, since they will help materially to take up the lag in 
employment in the heavy industries at a fair wage. 

Minimum wage laws covering women and minors in -orivate industry 
have been enacted by twenty-one states, the District of Columbia, and 
Puerto Rico. The Texas and Nebraska, laws have been repealed. The laws 
of Arizona, Arkansas, Puerto Rico, Kansas and the District of Columbia 
have been held unconstitutional. Minnesota's law was declared uncon- 
stitutional in its coverage of women though sustained in its application 
to minors. The Massachusetts law of 1921, relying on publicity for en- 
forcement, though sustained as to its constitutionality, has been re- 
placed by a "Standard" minimum wage act, similar to that of Hew York. 
The laws of Colorado, New Jersey and Utah are inoperative through lack 
of appropriation. These la 7S have not been extended to cover men. This 
has been due in large part of the courts' restriction of the police 
power of the states to legislation pertaining to the health, morals, or 
safety of its people. Because of the traditional protection afforded to 
children as wards of the court and to women who have become sui juris 
within a comparatively recent time, and whose fitness for the functions 
of motherhood traditionally has been protected by the courts, the 
legislatures have felt, and with some justification, that legisla-tion 
on minimum wages for women and minors in private industry could be more 
readier sustained than legislation for men. Despite this fact, however, 
the Supreme Court of the United States has held that the Fifth Amendment 
prevents the Congress of the United States from legislating on this sub- 
ject in the manner in which it was attempted in the District of 
Columbia (*); and it has held that the 14th Amendment prevents the 
states from exercising this legislative prerogative to enact laws of the 
Arizona (**) and Arkansas (***) types. 



(*) Adkins v. Children's Hospital, supra 

(**) Murohy v. Sardell, supra. 

(***) Donham v. West-Nelson Mfg. Co., supra 



9713 



-34- 



It would appear from a priori reasoning that the minimum wage laws for 
men in private industry would be held unconstitutional. Insofar as 
federal legislation is concerned, the implications of the Sche enter , (*) 
the Hoosac Tills, ( **) and the Carter Coal ( ***) cases, discussed 
more fully in a subsequent chapter, seem to hear out this theory. 

Minimum wage legislation of a compulsory arbitration nature has 
been upheld for a temporary period in a quasi public industry asperating 
on a franchise -; : lien there was threat of a general strike "bc.c.;use em/ iTers 
and employees could not agree on conditions of employment (.****). But 
the Supreme Coxirt of the United States held unconstitutional the fixing 
of wages on a permanent basis through compulsory arbitration in an 
industry where it has felt that the public interest is more remote( *****) . 
The obligations of the franchise considered in W ilson v. New made it 
necessary to continue operation and the threatened strike would tend 
to prevent the operation from being successful, thereby presenting 
a situation in which life and property would be imperiled. The fact 
that the milk industry has been held to be affected rith a public 
interest for the purpose of fixing prices in that industry would not 
necessarily, under this rule, be a precedent for the fixing of wa^es 
in that indue cry (******). 

The minimum wage laws for v "omen and minors enacted in 1933 and 
1934 have been designed to meet the .courts' announced objections to 
the laws previously held unconstitutional. The New York law has b=en 
sustained "oy the Supreme Court of Hew York in the Tipaldo ( ** *****) 
case. The Ohio law is now being tested (********). This new type of 
minimum wage law presents a realistic approach to the economic problems 
nov; confronting this country. It demonstrates the illusory nature of 
the freedom of contract possessed by an employee competing for a job 
and a living wage against millions of unemployed. TThether the Suareme 
Court of the UniteL States will frankly recognize this situation and 
accept an economic philosophy that will give a. measure of protection 
to those placed at a bargaining disadvantage by economic forces, is 
difficult to answer, Economic duress has not been recognized in the 
field of contract lav. It is difficult to conceive, however, that the 
Supreme Court of the United States will perpetuate the existing "no 
man's land" in which neither the sovereign states nor the Federal 
Government may enact minimum wage laws for its people;!' protection. 



(*) A.L-A. Schechter Coiporation et alv'. U. S. 295 U.S. 

495 (1935) 
(**) U.S. v. William II. Butler, et al, Receivers o f Hoosac Mills 

Corp. Ho. 401, Oct. Term 1935 
(***) James Falter Carter v. Carter Coal Co., Supreme Court of 

the District of Columbia, in Eq"'ity No. 59374. Now on 

certiorari to Supreme Court of U. S. where it is numbered 636 
(****) Wilson v. New, supra 
(*****) court of Industrial Relations v. Ohas. Wolff Packing Co., 

262 U.S. 522 
(******) Ilebbia v. New York, 291 U.S. 502 
(*******) People ex rel Tipaldo v Horehead, suora 
(********) Walker v. Chapman, In Equity 1170, District Court of Unitetf 

States Southern District of Ohio, Eastern Division. 

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The number of employees of this country now exceed the number of - 
employers by many times. The people hare expressed their will as to 
this type of legislation by their duly elected representatives. Will 
the peoples 1 mandates be held, unconstitutional, a. s in the past, under 
the theory that such mandates infringe the civil rights guaranteed to 
the people by the Federal Constitution - or will the delicate balance 
of a five to four decision destroy the "ho man's land"? That is a 
question which can only be answered by t he Supreme Court when the next 
case on a minimum wage law is decided. 



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MINIMUM WAGES 



APPENDIX 



Prepared ■by- 
Durham Allen - E. H. Cashion - Marion Jennings 



(This apnendix is incomplete and unchecked as to its accuracy 
due to reduction in personnel and limitation of time) 



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U. S. Department of Labor 
DIVISION OF LABOR STANDARDS 
Washington 



November 11, 1935. 



SUGGESTED LANGUAGE FOR A 
STANDARD MINIMUM WAGE BILL FOR WOMEN AND MINORS 

As drafted by 

Counsel for the National Consumers' League 

and approved by the 

Interstate Conference on Labor Compacts 

and the 

United States Lepartment of Labor 

Nov.' lav (v?ith minor modifications) in Illinois, New Hampshire, 

New Jersey, New York, Ohio, Massachusetts and Connecticut 

An act to provide for the investigation and study of wages of 
women and minors employed in trade and industr" in the State 
of ; and for the determination and establishment 

cf minimum fair mage standards for such workers; and for the 
purpose of preventing unfair and oppressive exploitation of 
such workers; and for other purposes. 

Be it enacted, etc. 
Section 1 . Preamble. 

The employment of women and minors in trade ant? industry in the 
State of at wages unreasonably low and not fairly commensurate 
with the value of the services rendered is a matter of grave and vital 
public concern. Many women and minors employed for gain in the State 
of are not as a class upon a level of equality in bargain- 

ing with their employers in regard to minimum fair wage standards, and 
"freedom of contract" as applied to their relations with their employers 
is illusory. Since a very large percentage of such workers are obliged 
from their week-to-week wages to support themselves and others who are 
dependent upon them in whole or in part they are, by reason of their 
necessitous circumstances, forced to accept whatever wages are offered 
them. Judged by any reasonable standard, wages are in many cases fixed 
by chance and caprice and the wages accepted are often found to bear no 
relation to the fair value of the service rendered. Women and minors 
employed for gain are -oeculiarly subject to the over-reaching of inef- 
ficient, harsh or ignorant employers and under unregulated competition 
where no adequate machinery exists for the effective regulation and 
maintenance of minimum 2"air wage standards, the standards such as exist 
tend to be set by the least conscionable employers. In the absence of 
any effective minimum fair wage rates for women and minors, the constant 
lowering of wages by unscrupulous employers constitutes a serious form 
of unfair competition against other employers, reduces the purchasing 
power of the workers, and threatens the stability of industry. The 

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evils of oppressive, unreasonable and unfair wages as they affect women 
and minors employed in the State of are such as to render 

imperative the exercise of the police power of the State for the protec- 
tion of industry and of the women and minors employed therein and of the 
public interest of the community at large in their health and well-being 
and in the prevention of the deterioration of the race. In the consider- 
ed judgment of the legislature this Act in all its parts is constitutional. 

Section 2 . Definitions as used in this Act: 

a - "Commissioner" shall mean the industrial commissioner. 

b - "Director" shall mean the director or any deputy director of the 
minimum wage division. 

c - "Wage Board" shall mean a board created as provided in section 6 of 

the Act. 

d - "Woman" shall mean a female of twenty-one years or over. 

e - "Minor" shall mean a person of either sex under the age of twenty- 
one years. 

f - "Occupation 11 shall mean an industry, trace or business or branch 

thereof or class of work therein in which women or minors are gain- 
fully employed, but shall not include domestic service in the home 
of the employer or labor on a farm. 

g - "An oppressive and unreasonable wage" shall mean a wage which is both 
less than the fair and reasonable value of the services rendered 
and less than sufficient to meet the minimum coat of living neces- 
sary for health. 

h - "A fair wage" shall mean a wage fairly and reasonably commensurate 
with the value of the service or class of service rendered. In 
establishing a minimum fair wage for any service or class of service 
under this Act the commissioner and the wage board without being 
bound by any technical rules of evidence or procedure (l) may take 
into account all relevant circumstances affecting the value of the 
service or class of service rendered, and (2) may be guided by like 
considerations as would guide a court in a suit for the reasonable 
value of services rendered where services are rendered at the 
request of an employer without contract as to the amount of the 
wage to be paid, .and (3) ma 1 ' consider the wages "oaid in the State 
for work of like or comparable character by employers who voluntari- 
ly maintain minimum fair wage standards. 

i - "A directory order" shall mean an order the nonobservance of which 
may be published as provided in section 11 of this Act. 

j - "A mandator?/ - order" shall mean an order the violation of which shall 
be subject to the penalties prescribed in section 18b of this Act. 



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Section 3 . 

It is hereby declared to "be against public policy for any employer 
to employ any woman or minor in an occupation in this State at an oppres- 
sive and unreasonable wage as defined in section 2 of this Act and any 
contract, agreement or understanding for or in relation to such employment 
shall he null and void. 

Section 4 . Administrative agency — powers and duties. 

a - There shall be set un, by the commissioner, as a separate division 

in the Department of Labor, a minimum wage division with a director 
in charge and with such deputy directors and other assistants and 
employees as the commissioner may deem desirable. 

b - The commissioner or the director or any authorized representative of 
the director shall have full power and authority; and it shall be 
his duty: 

1. To investigate and ascertain the wages of women and minors 

employed in any occupation in the State; 

2. To enter the place of business or employment of any employer of 

women and minors in any occupation for the purpose of examining 
and inspecting any and all books, registers, pay rolls, and 
other records of any employer of women or minors that in any 
way appertain to or have a bearing upon the question of wages 
of any such women or minors and for the purpose of ascertaining 
whether the orders of the commissioner have been and are being 
complied with; and 

3. To require from such employer full and correct statements in 

writing when the commissioner or the director or any authorized 
representative of the director deems necessary, of the wages 
paid to all women and minors in his employment. 

4. To carry out the provisions of this Act. 

c - The commissioner or the director shall have "oower to administer 

oaths and to require by subpoena the attendance and testimony sf 
witnesses, the production of all boohs, records, and other evidence 
relative to any matters under investigation. Such subpoenas shall 
be signed and issued by the commissioner or the director and shall 

be served and have the same effect as if issued out of the 

Court. The commissioner or the director shall have power to cause 
depositions of witnesses residing within or' without the State to be 
taken in the manner prescribed for like depositions in civil actions 
in the Court. 

Section 5 . Appropriation. 

There is hereby appropriated the sum of for the purpose of 

carrying into effect and administering the provisions of this Act. 



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Section 6 . TTage investigation and appointment of wage "boards. 

The commissioner or the director shall have the power, and it shall 
"be the duty of the commissioner on the petition of 50 or more residonts 
of the State, to cause an investigation to be made by the director or any 
authorized representative of the director, of the rages being paid to 
women or minors in any occupation to ascertain whether any substantial 
number of women or minors in such occupation are receiving oppressive and 
unreasonable wages as defined in Section 2. If, on the basis of informa- 
tion in the possession of the commissioner or the director, with or with- 
out a special investigation, the commissioner is of the opinion that any 
substantial number of women or minors in any occupation or occupations are 
receiving oppressive and unreasonable wages as defined in Section 2, he 
shall appoint a wage board to report upon the establishment of minimum 
fair wage rates for. such women or minors in such occupation or occupations. 

Section 7 . Composition and functions of wage boards. 

a - A wage board shall be composed of not more than three representatives 
of the employers in any occupation or occupations, an equal number 
of representatives of the employees in such occupation or occupations 
and of not mere than three disinterested persons representing the 
public, one of whom shall be designated as chairman. The commission- 
er after conferring with the director shall appoint the members of 
such wage board, the representatives of the employers and employees 
to be selected so far as practicable from nominations submitted by 
employers and employees in such occupation cr occupations. Two- 
thirds of the members of such wage board shall consti tute s. quorum 
and the recommendations or report of such wage board shall reouire 
a vote of not less than a majority of all its members. Members of 
a wage board shall serve without pay, but rnoy be reimbursed for all 
necessary traveling expenses. The commissioner after conferring 
with the director shall make and establish from time to time rules 
and regulations governing the selection of a wage board and its 
mode of procedure not inconsistent with this Act. 

b - A wage board shall have power to administer oaths and to require "oy 
subpoena the attendance and testimony of witnesses, the production 
of all books, records, and other evidence relative to any matters 
under investigation. Such subpoenas shall be signed and issued by 
'a member of the wage board and shall be served an<? have the same 

effect as if issued out of the Court. A wage board shall 

have power to cause depositions of witnesses residing within or 
without the State to be taken in the manner prescribed for like 
depositions in civil actions in the Court. 

c - The commissioner or the director shall present to a wage board 

promptly upon its organization all the evidence and information in 
the possession of the commissioner or director relating to the wages 
of women and minor workers in the occupation or occupations for 
which the wage board was appointed and all other information which 
the commissioner or the director deems relevant to the establishment 
of a minimum fair wage for such women and minors, and shall cause to 
be brought before the committee any v/itnesses whom the Commissioner 

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• -41- 

or the director deems material. A wage board may summon other 
rritnesses or call upon the' commissioner or the director to furnish 
additional information to aid it in its deliberations. 

d - Within sixty days of its organization a wage hoard shall submit a 

report including its recommendations as to minimum fair rage stand- 
ards for the women or minors in the occupation or occupations the 
wage standards of which the wage board was appointed to investigate. 
If its report is not submitted within such time the commissioner 
may constitute a new wage board. 

e - A wage board may differentiate and classify employments in any occu- 
pation according to the nature of the service rendered and recommend 
appropriate minimum fair rates for different employments. A wage 
board may also recommend minimum fair wage rates varying with locali- 
ties if in the judgment of the wage board conditions make such local 
differentiation nroper and do not effect an unreasonable discrimina- 
tion against any locality. 

f - A wage board may recommend a suitable scale of rates for learners and 
apprentices in any occupation or occupations, which scale of learn- 
ers' and apprentices' rates may be less than the regular minimum 
fair wage rates recommended for experienced women or minor workers 
in such occupation or occupations. 

Section 8 . Action following wage board report. 

A report from a wage board shall be submitted to the commissioner 
who shall within 10 days confer with the director and accept oi reject 
such report. If the report is rejected the commissioner shall resubmit 
the matter to the same wage board or to a new wage board with a statement 
of the reasons for the resubmission. If the report is accepted it shall 
be published together with such proposed administrative regulations as 
the commissioner after conferring with the director may deem appropriate 
to implement the report of the wage board and to safeguard the minimum 
fair wage standards to be established, and notice shall be given of a 
public hearing to be held by the commissioner or the director not sooner 
•than fifteen nor more than thirty days after such publication at which 
all persons in favor of or opposed to 1»he recommendations contained in 
such report or in such proposed regulations may be heard. 

Section 9 . Directory order — including administrative regulations. 

Within 10 days after such hearing the commissioner shall confer 
with the director and approve or disapprove the report of the wage board. 
If the report is disapproved the commissioner shall resubmit the matter 
to the same wage board or to a new wage board. If the report is approved 
the commissioner shall make a directory order which shall define minimum 
fair wage rates in the occupation or occupa.tions as recommended in the 
report of the wage board and which shall include such proposed administra- 
tive regulations as the commissioner may deem appropriate to implement 
the report of the wage board and to safeguard the minimum fair wage stand- 
ards established. Such administrative regulations ma3' - include among other 
things, regulations defining and governing learners and apprentices, their 

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rates, number, proportion or length of service, piece rates or their 
relations to time rates, overtime or part-time rates, "bonuses or special 
pay for special or extra work, deductions for hoard, lodging, apparel or 
other items or services supplied "by the employer, and other special con- 
ditions or circumstances; and. in view of the diversities and complexities 
of different occupations and the dangers of evasion and nullification, 
the commissioner may provide in such regulations without departing from 
the hasic minimum rates recommended by the wage "board such modifications 
or reductions of or addition to such rates in or for such special cases 
or classes of cases as those herein enumerated as the commissioner may 
find appropriate to safeguard the hasic minimum rates established. 

Section 10 . Special licenses. 

For any occupation for which minimum fair wage rates have been 
established the commissioner or the director may cause to be issued to a 
woman or minor, including a learner or apprentice, whose earning capacity 
is impaired by age or physical or mental deficiency or injury, a special 
license authorizing employment at such wages less than such minimum fair 
wage rates and for such period of time as shall be fixed by the commis- 
sioner or the director and. stated, in the license. 

Section 11 . Violation of directory order — penalty. 

If the commissioner or the director or any authorized .representative 
of the director has reason to believe that btlj employer is not observing 
the provisions of any order mad.e by him under Section 9 of this Act, the 
commissioner or the director may, on 15 days' notice, summon such employer 
to appear before the commissioner or the director to show cause why the 
name of such employer should, not be published as having failed to observe 
the provisions of such order. After such hearing and the finding by the 
commissioner or the director of nonobservance, the commissioner may cause 
to be published in a newspaper or newspapers circulating within the State 
of andVor in such other manner as the commissioner may deem ap- 
propriate, the name of any such employer or employers as having failed 
in the respects stated, to observe the provisions of the directory order 
of the commissioner. Neither the commissioner nor any authorized repre- 
sentative of the commissioner, nor. any newspaper publisher, proprietor, 
editor, nor employee thereof shall be liable to an action for damages 
for publishing the name of any employer as provided for in this Act, 
unless guilty of some wilful misrepresentation. 

Secti o n 13. Mandatory order 

If at an? r time after a directory minimum fair wage order has been 
in effect for three months the commissioner is of the opinion after con- 
ferring with the director that the persistent nonobservance of such order 
by one or more employers is a threat to the maintenance of fair minimum 
wage standards in any occupation or occupations the commissioner or the 
director may give notice of the intention of the commissioner to make 
such order mandatory and of a public hearing to be held not sooner than 
15 nor more than 30 days after such publication at which all persons in 
favor of or opposed to a mandatory order may be heard by the commissioner 
or the director. After such hearing the commissioner, if he adheres to 
his opinion, may make the previous directory order or any part thereof 
mandatory and so publish it, 
rni v _ _ _ . _ 



-43- 

Section 15 . Revision of wage orders. 

At any time after a minimum fair wage order has been in effect for 
one year or more, whether during such period it has been directory or 
mandatory, the commissioner may on his own motion after conferring with 
the director and shall on petition of 50 or more residents of the State 
reconsider the minimum fair wage rates set therein and reconvene the 
same wage board or appoint a new wage board to recommend whether or not 
the rate or rates contained in such order should be modified. The report 
of such wage board shall be dealt with in the manner prescribed in 
Sections 8 and 9 of "this Act provided that if the order under reconsidera- 
tion has theretofore been made mandatory in whole or in part by the com- 
missioner tinder Section 12 then the commissioner in making any new order 
or confirming any old order shall have power to declare to what extent 
such order shall be directory and to what extent mandatory. 

Section 14 . Revision of administrative regulations. 

The commissioner may at any time and from time to time after 'confer- 
ence with the director propose such modifications of or additions to any 
administrative regulations included in any directory or mandatory order 
of the commissioner without reference to a wage board, as the commissioner 
may deem appropriate to effectuate the purpose of this Act, provided such 
proposed modification or additions could legally have been included in the 
original order, and notice shall be given of a public hearing to be held 
by the commissioner or director not less than 15 days after such publica- 
tion at which all persons in. favor of or opposed to such proposed modifi- 
cations or additions may be heard. After such hearing the commissioner 
may make an order putting into effect such proposed modifications of or 
additions to the administrative regulations as he deems appropriate, and 
if the order of which the administrative regulations form a part has 
therefore been made mandatory in whole or in part by the commissioner 
under Section 12, then the commissioner in making any new order shall 
have the power to declare to whet extent such order shall be directory 
and to what extent mandatory. 

Section 15 . Right of review. 

All questions of fact arising under this Act except as otherwise 
herein provided shall be decided by the commissioner or the director and 
there shall be no appeal from the decision of the commissioner or the 
director on any such question of fact, but there shall be a right of re- 
view by (insert court which should have jurisdiction) from any ruling or 
holding on a question of law included or embodied in any decision or 
order of the commissioner or the director. (if procedure for review is 
not elsewhere prescribed by law, provisions in regard to hearings, etc., 
should be inserted here.) 

Section 16 . Keeping of records. . 

Every employer of women and minors shall keep a record of the name, 
address and occupation of each such employee, together with a record of 
the ages of all minors under 21 years of age in his employ. He shall 
further keep a true and accurate record of the amount paid each pay period 

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to each woman and minor, and of the hours worked each day and each week 
"by each woman and minor, and such other information as the director in 
his discretion shall deem material and necessary. Such- records shall he 
kept on file for at least one year after the entry of the record. Such 
register and record shall "be open to the inspection and transcript of the 
commissioner or his authorized representatives at any reasonable time, 
and every employer shall furnish to the commissioner or his authorized 
representatives on demand, a sworn statement of the same. 

Section 17 . Posting of minimum wage orders. 

Every employer subject to a minimum fair wage order whether direc- 
tory or mandatory shall keep a copy of such order posted in a conspicuous 
place in every room in which women or minors are employed. Employers 
shall he furnished copies of orders on request without charge. 

Section 18 . Penalties. ... 

a - Any employer and. his agent, or the officer or agent of any corporation, 
who discharges or in any other manner discriminates against any 
employee "because suds- employee has serve dor is ahout to serve on a 
wage hoard or has testified or is ahout to serve on a wage hoard or 
has testified or is ahout to testify hefore any wage hoard or in any 
other investigation or proceeding under or related to this Act or 
"because such employer "believes that said employee may serve on any 
wage hoard or may testify hefore any wage hoard or in any investiga- 
tion or proceeding under this Act shall he guilty of a misdemeanor 
and upon conviction be punished by a fine of not less than fifty nor 
more than two hundred dollars. 

b - Any employer or the officer or agent of any corporation who pays or 
agrees to pay to any woman or minor employee less than the rates 
applicable to such woman or minor under a mandatory minimum fair 
wage order shall be guilty of a misdemeanor and upon conviction be 
punished by a fine of not less than fifty nor more than two hundred 
dollars, or by imprisonment of not less than ten nor more than 
ninety days or by both such fine and. imprisonment , and each week in 
any day of which such employee is paid less than the rate applicable 
to him under a mandatory minimum fair wage order and each employee 
so paid less shall constitute a separate offense. 

c - Any employer or the officer or agent of any corporation who fails to 
keep the records required under this Act or to furnish such records 
to the commissioner or. the director or any authorized representative 
of the director upon request, or who falsifies such records or who 
fails to keep posted a copy of the minimum fair wage orders to which 
he is subject, as required by this Act, or who hinders or delays the 
commissioner or the director, or any authorized representative of 
the director in the performance of his duties in the enforcement of 
this Act, or refuses to admit, or lochs out such official from any 
place of employment which he is authorized by this Act to inspect, 
shall be guilty of a misdemeanor and upon conviction be punished by 
a fine of not less than twenty-five nor more than one hundred dollars, 
and each day of such failure to keep the records requested under this 

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Act or to furnish to the commissioner or the director or any author- 
ized representative of the director such records or other information 
as may he required for the proper enforcement of this Act shall 
constitute a separate offense. 

Section 19 . Collection of wages. 

If any woman or minor worker is paid by his employer less than the 
minimum fair wage to which he is entitled under or by virtue of a manda- 
tory minimum fair wage order he may recover in a civil action the full 
amount of such minimum wage less any amount actually paid to him "by the 
employer together with costs and such reasonahle attorney's fees as may 
be allowed by the court, and any agreement between him and his employer 
to work for less than such mandatory minimum fair wage shall be no defense 
to such action. At the request of any woman or minor worker paid less 
than the minimum wage to which he was entitled under a mandatory order the 
commissioner may take an assignment of such wage claim in trust for the 
assigning employee and may bring any legal action necessary to collect such 
claim, and the employer shall be required to pay the costs and such reason- 
able attorney's fees as may be allowed by the court. 

Section 20 . 

If any provisions of this Act, or the application thereof to any 
person or circumstance, is held invalid the remainder of the Act and the 
application of such provision to other persons or circumstances shall not 
be affected thereby. 

Section 21 . 

This Act shall be known as an Act to establish minimum fair wages 
for women and minors. 

Section 22 . 

This Act shall take effect immediately. 



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STATE OF ARIZONA 

1. PUBLIC WORKS 

A- INDUSTRIES COVERED 

Revised Code 1928, Section 1550. This was the first regu- 
lation -passed by the Legislature of Arizona and covered pub- 
lic works performed by employees of the Stats or any of its 
political subdivisions or by contractors or subcontractors in 
the execution of any contract with the State or any of its 
political subdivisions. 

On March 17, 1933, an act of the Legislature was approved 
regulating the wage provisions of all contracts in excess of 
$1,000 between the State of Arizona or any of its political 
subdivisions and any contractor or subcontractor for the con- 
struction, alteration, or repair of any public buildings or 
improvements of the State or of its political subdivisions. 

B. OCCUPATIONS COVERED 

All persons doing manual or mechanical labor employed by 
or on behalf of the State or of any of its political sub- 
divisions. The statute defines persons employed by or on 
bshalf of the State, etc., as persons doing manual or mechani- 
cal labor employed by contractors or subcontractors in the ex- 
ecution of any contract with the State, etc. Rev. Code Sec. 1350 

Laborers, workmen, or mechanics employed by contractors 
or subcontractors in the execution of any contract or contracts 
for public works within the State. Rev. Code, Chap. 72 

C» ¥AG-E PROVISIONS 

Current rate of per diem wages. Rev. Code Sec. 135^ 
The prevailing rate of wages. Rev. Code Chap. 72. 

D. fYPICAL PROVISIONS 

"Not less than the current rate of per diem wages in the 
locality where the work is performed shall be paid to per- 
sons doing manual or mechanical labor so employed by or behalf 
of the State or of any of its political subdivisions." Rev. 
Code Sec. 1350 

This provision of the Act of 1928 was amended on February 
17, 1933 as follows: Chap. 72 should read Cha-o. 71. 

"Not less than the minimum per diem wages fixed by the 
state highway commission for manual or mechanical labor per- 
formed for said commission or for contractors performing work 
under contract with said commission shall be T>aid to persons 



-47- 



of the State or of any of its political subdivisions." Rev. 
Code Sec. 1550 

Every contract included within the terms of the statute' 
shall contain a provision to the effect: Rev. Code Chap. 72. 

"That the rate of wages for all laborers and mechanics 
employed by the- contractor or any subcontractor on such public 
buildings or improvements shall be not less than the prevail- 
ing rate of wages for work of a similar nature in the county, 
city, town, village, or other civic division of the State in 
which the nubile building or improvement is located". 

E. CONSTITUTIONAL BASIS 

State v. Anklam j3t_al, 1954, 31 P. (2d), 888. 

It is to be noted that Revised Code 1928, Section 1350 
Stated "not less than the current rate of wages per diem in 
the locality where the work is performed". This statute came 
before the Supreme Court of Arizona in the case of State v. Jay 
J. C-arf ield Buildi ng Cp. , 3 P (2d) 985 -herein the defendant 
was charged by information with violating this provision of the 
Code by failing to nay one of its employees the current rate of 
wage for work on the school building. A jury was waived and a 
case was tried upon the statement of facts stipulated by the 
parties. The defendant moved to dismiss the action on the ground, 
among others, that the statute was in violation of the Fourteenth 
Amendment, of the Federal and Art. 4, Sec. 2 of the State Con- 
stitution on the ground that the statutes contained no ascer- 
tainable standard of guilt in that it could not be determined 
with any degree of certainty what would constitute a current 
wage in any locality, and that the term "locality" was fatally 
vague and uncertain. The lower court granted the motion to 
dismiss and its judgment was affirmed by the upper court on the 
authority of Connally v. General Construction Comnany , 269 U. S. 
385, 70 L. Ed. 322. 

It is to be noted that the court simply held the statute 
invalid because the "current rate of -per diem wages in the 
locality where the work is ■performed" was not susceptible of 
determination , by any known rule because "locality" is bound- 
less and indefinite, and, second, that the "current rate of per 
diem wages" might be anything from the minimum up to and in- 
cluding the maximum wage. 

The Court said: 

"The decisions of the United States Supreme Court involv- 
ing the construction of the federal Constitution are binding 
upon the state courts. If it were an oven question, we' would 
not be without authority to adopt the view that the current wage 



9713 



-43- 

feature of the law is sufficiently definite upon which to base 
a 'Criminal prosecution for its violation. Atkin v. Kansas, 
supra; Slkan v. Maryland, 259 TJ. S. 634, 36 S. Ct. 221, 60 1. 
3d. 478, following the Atkin Case; State v. Tibbetts, 21 Okl. 
Cr. 163, 205 P. 775; Ruark v. Internationf 1 Union etc., 157 Md. 
576, 146 A. 797. It may "be said that since the Supreme Court 
has decided the question both ways, we are at liberty to adopt 
the one appearing the sounder to use The itkin Case was de- 
cided in 1905 and, although the current to §e feature of the 
Kansas statute was involved, there was no iiscussion of it in 
the court's opinion. The la^ was sustainel hut there is nothing 
in the opinion indicating that the question of the vagueness or 
indef initeness of the statute was called to the court's atten- 
tion or argued to it. In the Connally Cas< that was the sole 
issue and the case i?ent off on that point. Because the latter 
is the last, as well as the only, direct afi irmative exuression 
of the court on the validity. of the statute, we fell that we 
are bound to follow it. 

The judgment is affirmed." 

As noted above the Section 1350 of the Reviseo. Code 1928 was amend- 
ed in 1933 and the amended -orovisions cane before the court in State v. 
Anklam et al , 31 P. (?d) 883 in which the -defendants , a board of, super- 
visors, were accused of failing to nay a janitor ar d common laborer per- 
forming manual labor for the county a minimum wage fixed by the state 
highway commission. A demurrer to the information was sustained and the 
State appealed. The srne grounds for defense as were advanced in the 
Garfield case were advanced in the nresent case. 3n addition, it was 
contended that the employer was subjected to the aibitrary whim of the 
state highway commission by permitting it, the comr. ission, without notice 
to him to change the minimum '-'age and expose him to criminal liability 
for failure to comnly with requirements of ^hich he had no knowledge or 
means of knowledge. 

The court held it to be within the power of the legislature to 
fix hours of labor and minimum wages of employees of the state or of 
its political subdivisions; that the amended statute was valid because 
it contained ascertainable standards of guilt was specific, definite, 
and certain. The court said: 

"The legislative adoption of a minimum wage fixed by 
the state highway commission, to be paid by the state and its 
political subdivisions for manual and mechanical labor, is not 
a surrender of legislative power to the highway commission. 
The law operates upon a fact to be .ascertained by the high- 
way commission and itself creates the crime". 

Attention is directed to the fact that a month after, Section 1350 
of the Revised Code was amended. The prevailing wage rate statute was 
passed (Chapter 71, Session Laws 1933). In the case of State v. J-stad 
et al, 32 P. (2d) 793, which was an appeal by the State from a judg- 
ment of the Superior Court of Pima County sustaining a demurrer to a 
criminal information filed against the mayor and members of the city 
council and the city manager of Tucson, charging them with violation 



9713 



-49- 

of Chapter 12, Session Laws of 1933 (known as the Minimum "Jage Law). In 
this case it was again contended that the minimum wage law was uncon- 
stitutional and it was further contended that the "minimum wage law" 
was repealed "by the "prevailing wage rate law". The court dismissed 
the question of constitutionality "by reference to the case of State v. 
Anklara , supra and distinguished "between the two statutes in the fol- 
lowing language: 

"It will "be observed tha,t chapter 12 is a general 
statute, covering all kinds of mechanical and manual 
la"bor on "behalf of the state or. its subdivisions. On 
examining chapter 71, it will appear that the provisions 
therein affecting wages are especially limited to 'lab- 
orers or mechanics in the construction, alteration or re- 
pair of any public buildings or other improvements' where 
the work is done by contract and the price exceeds $1,000. 

"Applying the two rules of law above referred to, we 
are of the opinion that there is no inconsistency in the 
two acts and whenever public work is done by contract, and 
the contract price is over $1,000, the wages paid are reg- 
ulated by the provisions of chapter 71, supra, while for 
all other classes of public work chapter 12, supra, ap- 
plies". 

The prevailing wage rate law, Chapter 72, 1935, was amended in 
1935 by adding Sections 4 and 5 to that Act. These provisions re- 
lated to definitions and penalties. Section 4, Definitions, states 
as follows: "The term 'locality in which the work is performed 1 shall 
be held to mean the city and county, or counties, in which the build- 
ing, excavation, or other structure, project, development, or improve- 
ment, is situated, in all cases in which the contract is awarded by the 
State, or any officer or agency thereof, and shall be held to mean the 
limits of the county, city, town, township, district, or other political 
subdivision on behalf of which the contract was awarded". The under- 
signed could find nothing in Chapter 72, wherein the term "locality in 
which the work is performed" is used. It is assumed by conjecture that 
"locality" was defined by this amendment because of the case of State v . 
Garfield, supra, in which the term "-locality" was held to be vague. It 
should be observed, however, that in this case Chapter 12, the minimum 
wage law was involved and not Chapter 72, the prevailing wage rate law. 
It is to be noted further that the term "general prevailing rate of per 
diem wages" shall be the rate determined upon by the Industrial Com- 
mission of Arizona, whose decision in the matter shall be binding and 
final upon all parties. The amendment further determines the manner 
in which the industrial commission shall ascertain the prevailing wage 
rate. 



9713 



-50- 
STATE Or AHIZ01IA 
II LIIlTIIiUi; T5TA.GE EOE FPJVATE I1HUSIEIES 

A. THE LA7J :. Chapter 3 of the Session Laws of 1323 

1. OCCUPATIONAL AHD IHDUSTHIAL COVERAGE: 

The provisions in this Act include en;' female employee 
in any store, office, shop, restaurant, dining room, 
hotel, rooming house, laundry or manufacturing establish- 
ment. 

2. see COVERAGE: 

All females. 

3. SPECIEIC PROVISIOH OE THE STATUTE PHOVIDIEG EOE MINIMUM 
iTAGES 

Section 1 provides that no person, persons, firm or cor- 
poration transacting "business within the State shall em- 
ploy any female in the above mentioned industries at a 
weekly wage of less than $l6.00 per week; a lesser wage 
being thereby declared inadequate to supply the necessary 
cost of living, to maintain her in health, and to provide 
her with the common necessities of life. 
U. CONSTITUTIONAL SASIS: 

In murphy V Sardell, 2S9 U.S. 530, action was brought in 
the District CoLirt of the United States for the District 
of Arizona. The complaint sets forth that Sardell vras the 
owner of two stores in the State of Arizona; that in the 
business it was necessary for him to hire and employ 
female labor and that he was employing four female em- 
ployees pach nf whom received a weekly wage in an 



-51- 
Murohv et al , be enjoined from enforcing against him from 
the above mentioned provisions of the Act and a prelim- 
inary order was issued as asked for in the bill. The 
case was appealed to the United States Supreme Court and 
the Court in affirming the charge. of the District Court 

said: 

"The judgment of the District Court is 
affirmed uoon the authority of Adkins V 
Child r en ' s" Ho srdtal , 26l U. S. 525. 
Mr. Justice Holmes requests that it be 
stated that his concurrence is solely upon 
the ground that he regards himself bound 
by the decision in Adkins V Children' s 
Hospital . LIr. Justice Brandeis dissents."* 

The State statute involved in this case was held invalid 

by the Supreme Court on the ground that it was in vio- 
lation of the Due Process Clause of the Fourteenth Amend- 
ment of the Federal Constitution. Prom the statement of 
Mr. Justice Holmes that this case was decided on the 
authority of Adkins V Children' s Hospital which held a 
portion of an Act of Congress applicable to the District 
of Columbia invalid under the Due Process clause of the 
Fifth Amendment. 



* The facts of the above case except of the specific reference to the 
Supreme Court were taken from the Brief On Appeal. 



9713 



-52- 
STATE 0? ARKANSAS 

MINI11QM WAGE LAUS III PRIVATE INDUSTRIES 
A. THE LAT7 : Act lgi, Acts of Arkansas, 1915 

1. OCCUPATIONAL AND INDUSTRIAL COVEPACE: 

The provisions of this Act include all female employed 
in any manufacturing, nechanical or commercial establish- 
ment, laundry, express or transportation company in the 
State. 

2. SEX COVEPAC-E: 
All females. 

3. SPECIFIC PROVISION OP THE ACT WHICH PROVIDE POR LIINIMUM 
WAGES 

Section f provides that it shall "be unlawful for any em- 
ployer of labor to pay any female worker in such an est- 
ablishment or occupation less than $1.25 P er ^Wt - or 
those having had si;; months experience, and that the 
minimum wages for any inexperienced female workers who 
have not had. six months experience shall he not less than 
$1.00 per day. 

Section 10 provides that the minimum rate of uages may 
"be raised or lawered if it is found that a lower or high- 
er minimum wage is sufficient to supply a woman or female 
worker in any occupation, trade or industry, the necessary 
cost of proper living and to maintain the health and wel- 
fare of such -,7omen or minor female workers and that such 
wage in the opinion of the Commission therein provided is 
reasonable. 



9713 



-53- 
h. CONSTITUTIONAL I3ASIS: 

In S tate V Crone. (Supreme Court, Arkansas, 1917) > 197 
S. IT. H, an appeal was had from a judgment for the de- 
fendent. The only issue of the case uas the validity of 
the State statute relating to the fixing of minimum 
wages for females. The constitutionality of the statute 
nan attacked on the ground that it violated the Four- 
teenth Amendment of the constitution by interfering with 
the right of contract of both employer and employee. This 
Court reversed the decision of the loner Court on the 
ground that the la? was a valid exercise of the police 



tv 



power. 

The Court in assuming at this conclusion too]: judicial 
notice of the fact that conditions with reference to the 
employment of women had made it necessary for many states 
to appoint commissions to make a detailed investigation 
of women's work and their wages. There had been inves- 
tigations by voluntary societies, medical societies and 
scientists. The court said that the concensus of opinion 
of all these societies, medical and other scientific ex- 
perts, was that inadequate wages tended to impair the 
health of women in all cases and in some cases to in- 
juriously affect their morals. The court also took no- 
tice that the members of the legislature came from every 
county in the state and the presumption was that it passed 
the statute to meet a condition which it found to exist 
and to remedy the evil causec thereby. 



9713 



-54- 
In Dohham et al V ' Jest-Kelson i.lanufactui-inc; Cor/pany 
?.Jj U. S. 657, an action was brought in the United States 
District Court for the Eastern District of Arkansas, 
Ties tern Division. The complainant alleged that plaintiff 
uas engaged in the "business of manufacturing articles to 
wear in the State of Arkansas; that in carrying on this 
lousiness the plaintiff employed women and girls. That 
a number of available employees were desirous of enter- 
ing their employment at whatever compensation they were 
capable of earning, but the Legislature had fixed a 
minimum wage of $1.00 per day which was in excess of the 
amount an experienced employee was able to earn; that 
plaintiff in order to train employees for its factories 
was compelled to employ inexperienced persons. 
Plaintiff asked that the Acts of the Legislature speci- 
fically referred to above be set aside and held for 
naught. A temporary restraining order was issued against 
the defendants restraining them from interfering with 
the plaintiff for failure to comply with the Act insofar 
as the statute fixed and minimum wage be paid by the 
plaintiff to his employees who are women. 
An appeal was had to the United States Supreme Court. 
The Court affirmed the decision ofthe District Court on 
the authority of Adkins V C hildren's Iios'oital . 26l 
U. S. 525. Itarohv V Sardell . 269 U. S. 550. Mr. 
Justice Brandeis dissented.* 

The State statute involved in this ca.se uas held invalid 
by the Supreme Court under the Fourteenth Amendment on 



Q713 



-55- 
authority of the Adkins case which held r. portion of an 
Act of Congress applicable to the District of Columbia 
invalid under the Fifth Anendnent. 



* The Acts of the plaintiff mentioned in the aiJoVe entitled case 
were obtained from one of the 3riefs on Appeal. 



S713 



-56- 

STATE OF CALIFORNIA 



I. Public Works 

A. Industries Covered 

California General La's, 1931, Act 6429. Construction of 
public T7orks, exclusive of maintenance work, by or on "behalf of the State, 
or of any county, city and county, city, town, district, or other politi- 
cal subdivision of the State. "Public Works" is defined "by section 4 as 
including construction T/ork done for irrigation, utility, reclamation, 
improvement, and other districts, or other public agencies, public officer 
or body, as well as street, sewer and other improvement work done under 
the direction and supervision, or by the authority of any officer or 
public body of the State, or of any political subdivision, district, or 
municipality thereof, regardless of whether or not any such political 
subdivision, district, or municipality operates under a freeholders' charter. 
"Public Works" also includes construction or repair work done under contract, 
and paid for in whole or in part out of public funds, but it is specified 
that any construction or repair work done directly by any public utility 
company pursuant to an order of the Railroad Commission, or other public 
authority, shall not be included in the term "Public Works," whether or 
not such work is done under public supervision or direction, or paid for 
wholly or in part out of public funds. 

In 1897, the Legislature of the state enacted a statute pre- 
scribing $2 per day as a minimum wage to be paid for labor on public 
works. St. 1897, p. 90. This wage may or may not have been more than 
the prevailing wage for labor in similar employment of that day. Ap- 
parently the validity of that statute has never been questioned, and the 
act was repealed in 1931. St. 1931. p. 909. (10 P. (2d) 751, at p. 758.) 

B. Occupations Covered 

Laborers, workmen, and mechanics employed by or on behalf of 
the State or of any of the political subdivisions herein specified 
above. Laborers, workmen, and mechanics employed upon public works 
shall include such persons employed by contractors or sub-contractors 
in the execution of any contract for public works within the State, or 
with sx^f officer or public body thereof, or in the execution of any such 
contract with any county, city and county, city, town, township, district, 
or other political subdivision of the State, or with any officer or pub- 
lic body of such political subdivisions. 

C . Wa ge Provisions 

The prevailing rate of per diem wages. 

D. Typical Provisions 

Hot less than the general prevailing rate of per diem wages for 
work of a similar character in the locality in which the work is performed, 
and. not less than the general prevailing rate of per diem wages for legal 

9713 



-57- 

holiday and overtime work, shall be paid to all laborers, workmen, and 
mechanics employed by or on behalf of tho Stc-.t© <y£ California, or by or 
on behalf of any county, .city and county, city, town, district, or other 
political subdivision of 'the said State, engaged in the construction of 
public works, exclusive of maintenance work. (California ^.cts of 1931 
Chapter 397, Section 1.) 

E . Further Statutory Provisions 

The public body which awards any contract for public work on 
behalf of t he State, or on behalf of any of the political subdivisions 
hereinabove mentioned, is obliged to ascertain such general prevailing 
rate of wa^es in the locality in which the work is to be performed for 
each craft or type of worlonan or mechanic needed to execute the contract 
Such awarding body is further obliged to specify in the call for 'bids for 
such contracts and in the contracts themselves what the general prevailing 
rate of wage in the said locality is for each craft or type of workman 
needed to execute the contract, and also the gem.".! prevailing rate for 
legal holidays and overtime work. The decision as to such prevailing rate 
of the awarding public body is final. 

It is mandatory tmon the contractor to whom any such contract is 
awarded to pay not less than the specified rates. As a penalty for violation 
of the provisions regarding payment of the stipulated rates, the contractor 
or subcontractor under him is obliged to forfeit to the State of political 
subdivision, district or municipality thereof awarding the contract, the 
sum of .110 for each laborer, workman, or mechanic employed for each calendar 
day or portion thereof, to whom the contractor or subcontractor under 
him paid less than t he stipulated rate. The statute further provides that 
the public body awarding any such contract shall cause to be inserted in the 
contract a stipulation as regards the above-mentioned penalty. The statute 
further provides that the awarding body and its officers or agents are to 
take cognizance of complaints of all violations regarding wa ; r ;es. If the 
contractor is found to have violated the provisions of the contract or the 
terms of the statute, upon a full investigation by either the division of 
labor statistics and law enforcement of the Jtate department of industrial 
relations, or by the awarding body, that such body shall hold and retain 
all sums and amounts which shall have been forfeited from monies becoming 
due under the contract. The statute further provides that the contractor 
may withhold f rom any subcontractor sufficient sumsto cover any p enal ities 
withheld from the contractor on account of the sxibcontractor 's violation of ', 
the statuto, and gives to the contractor a right of action against the 
subcontractor if he shall have paid the full sum due and owing to the sub- 
contractor. The statute further requires that each contractor and subcon- 
tractor shall keep accurate records showing the names and occupations of 
all laborers, workmen, and mechanics employed by him in the execution of 
any such public works contract and the actual per diem wages paid to such 
workers; that such records shall be open at all reasonable hours to the 
inspection of the public body awarding the contract, or t o the chief of 
the division of labor statistics and law enforcement of the State depart- 
ment of industrial relations, his deputies or agents. The statute further 
defines the term "locality in which the ''ork is par formed" as being the city 
and county, county or counties in which the building, highway, road, 
excavation or other structure, project, development or i improvement is 
situated, in those cases where the awarding body is theState or any public 

9713 



-58- 

body thereof. Where the contract is made on behalf of any'- anty, city 
and county, city, town, township, distrit, or other political subdivision, 
the term "locality in which the work is performed" shall moan the limits 
of such political subdivision. The statute provides that any officer, agent 
or representative of the state or of any political subdivision, district, 
or municipality thereof, who wilfully violates or refuses to comply with 
the provisions of the act, shall be guilty of a misdemeanor. It also 
provides that any contractor, or subcontractor, or agent or representative 
thereof doing public work, who shall neglects to keep an accurate record 
as hercinabove-mentioned, or who shall refuse to allow access to the same 
to persons authorized to inspect them, shall be guilty of a misdemeanor. 
Upon conviction of the misdemeanor hereinabove specified, the person so 
convicted shall be punished by a fine not exceeding .,'500 or by imprison- 
ment not exceeding six months, cr by both. The statute further provides 
that the statute is divisible as to the constitutionality of its provisions. 

E. Ccnstituticnal Basis 

»***the state as the employ r having full con- 
trol of the terms and conditions under which will 
contract may, through its legislatures, and within 
constitutional limits, provide the. wage which shall be 
paid to its employees and that the payment of a less 
sum shall be unlawful." Metropolitan Hater List, v. 
Whitsett, 10 P. (2d) 751, 

In the case of Metropolitan v , r ater District v. Fnitsott (supra) an 
application for a writ of mandate was filed to compel the respondent, chair- 
man of the board of directors of the petitioner district, to sign a contract 
for the construction of a road to be used in conjunction .with Colorado 
River aqueduct. The respondent refused to sign the contract because the 
petitioner district did not ascertain and specify in its notice inviting 
proposals and insert in the contract the general prevailing rate of per 
diem wages in the locality in which the work was to be performed for each 
craft or type of workman or mechanic needed to execute the contract as 
required by the public wage rate act. It was contended by the petitioner 
district (l) that the said act was void for uncertainty; (1) that the 
burden attempted to be imposed upon the petitioner was in violation of the 
Constitution, which forbade the legislature to impose taxes uicn certain 
specified political subdivisions of the state; (3) that the act makes an 
invalid delegation of legislative power. The Court Said: 

"The legislative power of r- filiation and control 
over the affairs of the district include the power to 
prescribe the conditions under which the state will 
permit public work to be done. It is immaterial wheth- 
er the state undertakes the work itself or lias invest- 
ed one of its governmental agencies or instrumental- 
ities with power to do it. Atkin v. Kansas, 191 U.S. 
207, 24 S. Ct. 124, 48 L. Ed. 140; Helm v. McCall, 
239 U.S. 175,36 S. Ct. 78, 50 L: Ed. 306, Ann. Cas. 
1917P, 387 

In regard to the first contention of the petitioner it was asserted 
that the enactment is void for uncertainty (a) in that the phrase "general 

9713 



-59- 

prevailing rate of per diem wages" is not and cannot be stated as a def- 
inite amount, (b) in that the phrase "work of a similar character" is too 
vague to permit definition and (c) in that the phrase "in the locality 
in which the work is performed" is in itself uncertain and is rendered 
less certain by the attempt made in the act to define it. It is there- 
fore argued that, in view of the penal provisions of the act, neither 
the officers of the district nor the contractors with the district may 
know in advance with sufficient certainty whether any act performed by 
them is in contravention of the statute. The petitioner district placed 
its main reliance in this connection u ;on the cases of Connally v. 
General Construction Co., 2G9 U. S. 385; State v. Garfield Building Co., 
(Ariz) S. P. (2d) 933; and Mayhew v. Nelson, 34fj III. 331. The Court 
held these contentions untenable, saying, 

"In the Connallv case and in the case of State 
v. Garfield Building Co., it is observed that the 
statutes therein involved imposed the duty on the 
contractor to determine at his peril the current rate 
of wages, and the locality in which the w^rk was to 
be performed was not defined. In the California 
statute the prevailing rate of wages, which must be 
deemed the same as the current rate of wages, is de- 
termined by the public body awarding the contract, 
and the locality to be considered in fixing the rate 
of wages is also defined. ***I n 1303 the question 
of the validity of a Kansas statute prescribing a 
limit of eight hours of labor per day on public con- 
tracts and requiring the payment of the current rate 
of wages on public work based m private work of a 
similar character came before the Sunreme Conrt of 
the United States. In Atkin v. Kansas, 191 U.S. 207, 
24 S. Ct. 124, 48 L.Ed. 14-8, it was decided that the 
statute was a valid er.ere.ise of the power of the state 
in providing the conditions under which it would per- 
mit its -nublic work to be p. rforrncd. In that case the court 
court said, at page 222 of 191 U.S., 24S.Ct.124, 
127: 'It cannot be deemed a part of the liberty of 
any contractor that he be allowed tn do public work 
in any mode he may choose to adopt, without regard 
to the wishes of the state." It is suggested by coun- 
sel that the eight-hour provision of the Kansas 
Statute was the subject of most of the discussion in 
the opinion, but the 'current rate of w ages' provi- 
sion was also involved and was not held invalid. It 
cannot be assumed that the statute would have been 
sustained in its entirety if the latter provision 
had been deemed invalid." 



As regards the Illinois case (Llayhew v. Ilelson, supra) which involved a 
statute similar to the California statute, the Court merely remarked 
that the Supreme Court of Illinois based its conclusion largely on the case 
of Rodgers v. Coler, 165 N.Y. 1, which had been long repudiated by the 
Court of Appeals of Hew York. 

The Court, however, did say that the definition of the Phrase "Locality 

9713 



-60- 

in which the work is performed" was somewhat ambiguous but that the 
petitioner was embraced by both parts of the definition. 

As regards the second contention of the petitioner, the Court said: 

"The difficulty with the argument is that it as- 
sumes that the burden imposed by the statute is a tax. 
If it is' not, the argument necessarily fails. I n our 
opinion the burden imposed by the statute is not a 
tax as contemplated by the Constitution. It is essen- 
tially a minimum wa^c lav;. When the schedule of wages 
is determined, not less than the amounts specified 
therein may be paid to employees en the work. The 
act provides that nothing therein shall be con-strued 
to prohibit the payment to any employee on the 
public v/ork more than the prevailing rate." 

As regards the third contention of the petitioner that the act made 
an invalid delegation of legislative power, the Court held that the 
legislature merely delegated the power to determine a fact or state of 
things upon which the law made or inti ddod to make the act of the 
legislature depend. 

It is to be noted that on the same day that the Metropolitan Water 
District case was decided, the Supreme Court of California decided the 
case of City of Pasadena v. Charleville, 10p. (2d) 745. . This case was also 
a petition for a writ of mandate to compel the respondent, as city manager c 
of the City of Pasadena, to sign a contract authorized by the board of 
directors of the city for the constriction of a galvanized wire fence 
around the city's water reservoir. The city manager refused to sign 
the contract on the ground that it did not contain the specification of a 
general prevailing rate of per diem wages. The Court merely held that 
the City of Pasadena' was not subject to or controlled by any enactment 
of the legislature as to its city's municipal affairs and that the im- 
provement contemplated by the contract was a municipal affair. 

In the case of Southern California Roads Co. v. McGuire et al . , 
39 P. (2d) 412 (December 26, 1934), the Supreme Ccurt stated as' follows: 

"It is conceded that neither the notice inviting 
bids for said work nor the contract itself contained 
any specification of the general prevailing rate of 
per diem wages as provided in the Public Works Wage 
Rate Act enacted in 1931 (St. 1931, p. 910 ). The 
validity of this act was approved by this court in 
Metropolitan Water District v. Whitsett, 215 Cal.400, 
10 p. (2d) 751." 

This was a proceeding for a writ of mandamus directed to certain members of 
the board of Public Works of the City of Loc Angeles requiring them to pciss 
upon the sufficiency and form of a certain contract for the improvement 
of a boulevard in the City of Los Angeles, and to sign and execute said con- 
tract on behalf of the Board of Public Works. The Board of Public Works 
refused to execirte the contract b: cause neither the notice inviting bids 
nor the contract itself specified the general prevailing rate of per diem 

9713 



-61- 

wages in the City of Los Angeles for each craft or type of workman needed 
to execute it. It was held that the contract let for the improvement 
of a city street, constituting part of the state highway system, which 
was authorized "by an agreement between the city and state department 
of the public works whereby the cost was to be defrayed by the state 
and the work was subject to state inspection, must comply with the 
provisions of general law, (the public works wage rate act) since the 
improvement was not a municipal affair. 

The Metropolitan Water District case (supra) was cited with approval, 
as to the contention that the public wage rate act was an unlawful 
delegation of power to the awarding body, in the case of Ex perte Laswell, 
36 P. (2d) 678, at 686 (1934 - District Court of Appeals. ) 



9713 



-62- 

STATE OF CALIFORNIA 
II. MINIMUM WAGE LAW FOR PRIVATE INDUSTRIES 

A. THE LAW: Deerings General Laws, 1931, Title 270; Act 3613 

1. INDUSTRIES AND OCCUPATIONS COVERED: 

Occupations, trades and industries in which women and min- 
ors are employed. 

2. OCCUPATIONS COVERED: 

Women; minors (females under 21, males under 18), whose 
compensation for labor is measured by time, piece-work 
or otherwise. 

NOTE: The Industrial 7/elfare Commission composed of five mem- 
bers (one woman) appointed by the Governor is empowered 
to grant to women physically defective, apprentices or 
learners, a license which authorizes them to be employ- 
ed at a wage less than the minimum '.'age. 

3. SPECIFIC PROVISION WHICH PROVIDES FOR MINIMUM WAGES: 

"The Commission shall have further power after a public 
hearing had on its own motion or upon petition, to fix: 
(1) a minimum wage to be paid to women end minors en- 
gaged in any occupation, trade or industry, in this 
State which shall not be less than a wage adequate to 
supply to such women and minors the necessary cost of 
proper living and to maintain the health and welfare 
of such women and minors. ..." 

4. CONSTITUTIONAL BASIS: 

This law is a legislative exercise of the State police 
power. No reported case has been found in which the 
validity of this law was determined. It appears that 
this Act would be held to violate the Fourteenth Anend- 
ment under Murphy v Sardell, 269 U. S. 580; Donham et 
al V West -Nelson Manufacturing Company, 273 U. S. 657, 
and Adkins V Childran's Hospital, 261 U. S. 525. 



9713 



-63- 

s .,., ; ,. : Qrn colo -;.jo 

I. Public 'Tories 

A. Industries Covered 

Acts of 1S33, Chapter 124 

The act regulates every contract in excess of $G000 to 
which the State of Colorado is :. party for the construction, al- 
teration, or repair of any highway, building, or other miblic work with- 
in the geographical limits of the State. 

B . Pe culations Covered 

Laborers or mechanics employed by any contractor or sub- 
contractor in the construction, alteration, or repair of any highway, 
building, or other public work within the geographical limits of the 
State, in the execution of any contract in excess of $5000, to which the 
State is a party. 

C. Wage Provision s 

1i\e prevailing rate of wages. 

D» Typical Pro visions 

"Every contract * * * shall contain a -orovision 
to the effect that the rate of wage for all laborers 
and mechanics employed by the contractor or any sub- 
contractor on the hi chway, building, or other public 
work covered by the contracts shall be not less than 
the prevailing rate of wages for work of a similar 
nature in the city, town, village, or other civil sub- 
division of the State in which the highway, building, 
or other public work is located:" 

E. Further St atutory Prov is ions 

That the rate of pay for highway work shall not b<= less 
than the rate established by the State Highway department under the 
authority of the Federal Emergency Relief and Construction Act of 1932. 

It is to be noted that th° statute does' not cover public 
works of the political subdivisions of the State but applies only to 
contracts to which the State is a party. 

L£?Jorers and mechanics employed toon public works is not 
specifically defined. 

The statute is amiguous, it sterns to the undersigned, in 
specifically setting forth by whom the prevailing rate of wages shall 
be determined. A proviso in the statute states that in case any dispute 
arises as to what are the prevailing rates of wages for work of a 
similar nature applicable to the contract, which cannot be adjusted by 
the contracting officer, the matter shall be referred to the Industrial 
Commission of Colorado, and its decision shall be conclusive on all 
parties to the contract. From this it would seem that the officer of the 
state awarding the contract is to determine the prevailing rates of wages 

9713 



-64- 

and if the prevailing rate decided upon "by hirn is disputed, the matter 
is to be rreferred to the industrial commission, whose decision shall be 
final. This:-" interpretation of the statute seems to be corroborated by V% 
the provision stating, "Such prevailing rates shall be stated in the 
invitation for bids and shall be included in proposals or bids for the 
work". 

The act, when passed, did not affect any existing contract 
or any contract that was thereafter to be entered into pursuant to 
invitations for bids that were outstanding at the time of such passage. 

F. Constitutional Basis 

Section 3 of the act reads as follows: 

"The general assembly hereby finds, determines, 
and declares this act to be necessary for the immed- 
iate preservation of the public peace, health, and 
safety. " 

The statute herein regulating wages has not been subject 
to any litigation or attack. It is to be noted, however, that in the 
case of Keef, et al. , v. People, 37 B&C.791, a statute regulating the 
hours of labor was sustained on the doctrine of Atkin v. Kansas, where- 
in the Court held that restricting hours of labor on works of public 
improvement was a valid exercise of the states proprietary power to 
prescribe for itself and its auxiliary branches of government terms and 
conditions on which work of a public character should be done. The 
defendant in this case was convicted under an information based- uoon 
the following statute : " In all work hereafter undertaken in behalf of 
the state or any county, townshro, school district, municipality, or 
incorporated town, it shall be unlawful for any board, officer, agent 
or any contractor or subcontractor thereof to employ any mechanic, 
workingman, or laborer in the arosecution of any such work for more than 
eight hours a day". 

This case was tried upon a stipulation of facts from which 
it appears that the defendants were contractors with the city and county 
of Denver and were engaged in constructing a sewer belonging to the city 
and had emoloyed one 3.IC. to do work on it for more than eight hours in 
each calender day. It was also stipulated that the labor performed by E.K. 
was healthy outdoor work, not dangerous or in any way injurious to life, 
limb or health, and could be performed by 3.X. for a period of nine hours 
a day without injury or harm to him. Counsel agreed that the statute was 
not within the police' power of the state and the Court agreed with this 
conclusion. The Court said "And, in referring to the fact which was 
stipulated by the parties in that case, (Atkins case), as here, that the 
work performed by the employe of defendants was not dangerous to life, 
limb, or health, and labor for more than 10 hours was not injurious to 
him in any way, the court said that such considerations were not control- 
ling, because the decision was based uoon the broad ground that the work 
being of a public character, absolutely under the control of the state 
and its municipal agents acting by its authority, it is for the state 
to prescribe the conditions under which it '"ill permit work of that kind 
to be done, and the legislation in ouestion did not infringe upon the 

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-lersonal riglfc&s of others 1 '. 

It is therefore thought that the statute here under consider- 
ation would "be constitution-,! if it was found that the statute itself 
was not vague and uncertain. The undersigned is of the opinion that the 
statute is aribigious, vague and uncertain. 



-66- 

STATE OF COLORADO 
II. MINIMUM WAGE LAW IN PRIVATE INDUSTRIES 

A. THE LAW ; Compiled Laws 1921, Sections 4263-4383-4329 

1. INDUSTRIES COVERED 

Any occupation wherein women or minors under the age of 
eighteen years are employed. Every vocation, trade, 
person and industry where a female person of or over the 
age of eighteen years, or a minor of either sex under the 
age of eighteen years is employed. 

2. SEX COVERAGE 

All females over eighteen years of age, both sex under 
eighteen years of age. 

3. ADMINISTRATIVE BODY 

Industrial Commission 

The Commission to be charged with the enforcement of this 
act, 

4. SPECIFIC PROVISIONS OF THE ACT WHICH PROVIDE FOR MINIMUM 
WAGES 

"It shall be unlawful to employ any woman in any occupation 
within the State of Colorado for wages which are inadequate 
to supply the necessary costs of living and to maintain in 
health the woman so employed; and it shall be unlawful to 
employ minors in any occupation within the State of Colorado 
for unreasonably low wages; and it shall be unlawful to 
employ women or minors in any occupation within this State 
under conditions of labor detrimental to their health and 
morals. " 

Minimum wages for minors and conditions of employment shall 
be made after public hearing. The Commission may hold 
public hearings at any time and place for the purpose of 
investigating any other matters it is authorized to in- 
vestigate. 

5. CONSTITUTIONAL BASIS 

According to information received from the United States 
Labor Department, this Act has never gone in to force 
because the Legislature has not made apprpriations suf- 
ficient to put it in to effect. No case has been found 
in which the validity of this law was determined. It 
was enacted by legislative exercise of the State police 
power. It appears that it would be invalid under Murphy 
v. Sardell, 269 U. S, 530; Donham et al v. West-Nelson 
Manufacturing Company, 275 IT. S. 657, and Adkins v, 
g 713 Children's Hospital, 261 U. S. 525. 



-67- 

STATE OF CONNECTICUT 

I . Public Works 

A. INDUSTRIES COVERE D 

General Statutes 191 - 33, Section 31 B 

The Statute regulates the wage provisions of every contract for 
the construction, remodeling or repair of any public building "by the 
State or any of its agents. 

Note: It is assumed until the contrary appears upon a further 
study of the Connecticut Statutes that municipal corporations and 
other political subdivisions are State agents and, therefore, covered 
by the provisions of this Act. 



Note: It is to be noted that the Statute is limited to- the con- 
struction, remodeling or repair of any public building and does not 
include other public works. 

B. PC CUP ATI OIIS COVERED 

Mechanics, laborers, and workmen employed by any person in the 
construction, remodeling or repair of any public building for, or on 
behalf ' of, the State or any of its agents* 

C. WAGE PROVISIONS 

The Prevailing Eate of Wages 

D . TYPICAL PROVISIONS 

Every such contract shall contain the following provisions: 

"The wages paid to any mechanic, laborer, or workman 
enroloyed upon the work herein contracted to be done shall be 
at a rate equal to the rate of wage customary or prevailing 
for the same work in the same trade or occupation in the town 
in which such public building is being constructed." 

E. FURTHER STATUTORY PROVISION S 

Any person who knowingly or wilfully violates the wage provisions 
of this Section shall be fined not more than one hundred dollars for 
each offense. 

The Statute provides in case any dispute arises as to the customa- 
ry or prevailing rate of wage in any town, the Commissioner of Labor 
and Factory Inspection shall, after proper investigation, determine 
such rate of wages. His decision shall be final unless within ten 
days from the date of his decision an appeal is taken to the superior 
court in the county where such public building is being constructed, 
remodeled, or repaired. The above-mentioned Commissioner is authoriz- 
ed by the Statute to make complaint to the proper prosecution authori- 
ties for the violation of any of the provisions of this Section. 



9713 



-6c 



If there is no data available as to the prevailing rate of wage 
in the town wherein any such public "building is "being constructed, 
or so forth, the above mentioned Commissioner is authorized to make 
investigation and obtain data from the towns adjoining the tovm 
where such "building is "being constructed. 

It is to "be noted that the Statute does not specifically set 
forth what "body is to determine the prevailing rate of wage, die 
Commissioner of Labor is to determine the rate of wage in case a 
dispute arises. It is, therefore, thought that the public body 
awarding the contract is to determine the m-ev^BSing rate of wages 
in the first instance as each contract must contai n the statutory 
provision regarding such rate of wages. It is to be noted that the 
Statute contains a penal provision and, therefore, the Statute must 
be interpreted in the light of the case of Connally v. General 
Construction Co. If the awarding bod; 1 ; determines the prevailing rate 
of wage, it is thought that such rate is sufficiently certain and de- 
finite and, therefore, not within the rule laid down by that deci- 
sion. It is further thought .that the "town in which the public 
building is being constructed" is sufficiently definite and certain. 

F. CONSTITUTIONAL BASIS 

The State or its agents as an employer shall have full control 
over the terms and conditions, within constitutional limits, under 
which it will contract. ITo cases have been found where the Statute 
has been reviewed or interpreted by the Courts of Connecticut. 



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-69t- 
STATE OP CONNECTICUT 

ii. minimum wags laws n: private industries 

A. T HE LAW ; 

1. INDUSTRIES COVERED: 

Sweat shops defined in the statute as "being an industry, 
trade, "business or occupation which pays to its employees 
an unfair and oppressive scale of wages in which women or 
minors are gainfully employed, "but not including domestic 
service in the home of the employer or labor on a farm. 

1A - Sex and Age Coverage: Women and Minors 

2. OCCUPATIONS COVERED: 

Services of women or minors where gainfully employed. 

3. SPECIFIC PROVISION WHICH PROVIDES FOR MINIMUM WAGES: 

The Commission shall create a wage "board composed of not 
more than three representatives of the employers, an equal 
number of representatives of employees and not more than 
three disinterested persons representing the public. With- 
in sixty days of its organization the wage board shall 
submit a report including its recommendations as to mini- 
mum fair wage standards for the women cft-vminors in the 
occupation. If the wage board report is not submitted 
within time then the commission may construct a new wage 
board. A wage board may differentiate and classify em- 
ployments in any occupation according to the nature of the 
service rendered and recommend appropriate minimum wages 
for different employments. The wage board may recommend 
minimum fair wages varying with localities if in its judg- 
ment such be proper. The wage board may recommend a suit- 
able scale of rates for learners and apprentices which may 
be less than the regular minimum fair wage for experienced 
women or minors. 

For any occupation for which minimum wages have been 
established, the commission may issue to a woman or minor, 
including a learner or apprentice, whose earning capacity 
is impaired by age or physical or mental defect or inquiry, 
a special license authorizing employment at such wage less 
than the minimum wage and for such period of time as shall 
be fixed by license. Any woman or minor paid less than the 
minimum wage may recover in a civil action the full amount. 
The woman or minor may assign the claim to the Commission- 
er who may bring action for the benefit of the employer. 



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4. CONSTITUTIONAL BASIS: 

The constitutional "basis for this law is a legislative 
exercise of the State police power. No case has "been 
found in which the validity of this law was determined. 



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-71- 

STATE OP DELAWARE 



Public Works 

A. INDUSTRIES COVERED 

Revised Code 1915, 21'6l, Section US: Acts of 1533 
Chapter 172. The Revised Code of 1915, which applies only to 
the municipal corporations of the City of Wilmington, regulates 
the wages of specified employees on all pu'blic work or uoon 
any material to "be used up on or in connection with such -public 
\7orl: . Each contract for such public work must contain a stip- 
ulation that each of the specified employees employed by any 
contractor, subcontractor, or other person on, about, or upon 
such public work shall receive the wages provided for in the 
Act (Section kS) . 

The Acts of 1933, Chapter 172, which are amendments to 
the Revised Code of 1915, covers all contractors or subcon- 
tractors contracting for the construction; alteration, or re- 
pair of any public work for which the State of Delaware app- 
ropriates any part of the funds. 

Hote: Section 3, the repealing clause of Chapter 172, 
states all acts or parts of acts not consistent with the pro- 
visions of this Act be and the same are hereby repealed only to 
the e::tent of such inconsistency. It would seem, therefore, 
that this amendment would apply to the City of Wilmington and 
the other municipal corporations, of which there are four, and 
other political subdivisions where the State appropriates any 
part of the funds for the construction, alteration, or repair • 
of any public work. If this is so, Chapter 172 would indicate 
that a state, department, boar'", or commission would be the 
awarding body of such contract and not the municipalities or 
other political subdivisions. 

3. OCCUPATIONS COVERED 

(Revised Code of 1915) All classes of laborers, workmen, 
or mechanics employed upon public work or uoon any material 
to be used in connection with such -public work . These lab- 
orers, workmen, and mechanics are only those which are employed 
in the performance of such contracts to which the City of 
Wilmington is a party. 

(Chapter 172, Acts of 1933) Laborers and mechanics em- 
ployed ''oy contractors or subcontractors in the construction, 
alteration, or repair of any public work for which the State 
appropriates any part of the funds. 

C. WAGE PROVISIONS 

■ "-Revised Code 1915, (Section U6) The Prevailing Rate of 
Wages. Act of 1933, (Chapter 172) The iiinimum Rate of Wages. 



9713 



-72- 

D. TYPICAL PROVISIONS 

(Revised Code of 1915, Section U6) . 

"The wages to "be paid***shall not 'be less than 
the prevailing rate for a day's work in the same 
trade or occupation in. the locality in the State 
where such, pull ic work, on, about, or in connection 
with which such labor is performed, in its final or 
completed form is to "be situated, erected, or used." 

(Acts of 1933, Chapter 172) . 

."Specif i cat ions** *which, as far as possible, 
contain the minimum rate of wages which nay he 
paid by the contractors, or his subcontractors, for 
the work performed by laborers and mechanics employ- 
ed on such public work, and such laborers and mech- 
anics shall be paid not less than such mininuns wage 
or wages. " 

E. FURTHER PROVISIONS 

Revised Code 1915* 

Penalties. Each such contract must contain a provision 
that the contract shall be void unless the person or corpora- 
tion making the same shall comply with all provisions of the 
chapter and further that no person or corporation shall be 
compensated for any work done upon any contract where such 
person or corporation violates the provisions of this chapter. 

Section k~[ recites the penalty for violation or evasion 
of the provisions of this Chapter by public officials, which 
is dismissal from office. It also specifies who may maintain 
suits to receive monies paid to contractors who have violated 
the provisions of the Chapter. 

(Acts of 1933, Chapter 172) 

Every contract entered into upon specifications which 
stipxilate a penalty of an amount equal to three times the 
difference between the minimum wage contained in the speci- 
fications and the wage actually paid to such employees for 
each day during which he has been employed at a wage less 
than the minimum. It is further provided that any officer 
or inspector shall upon observation or investigation report 
any such violations to the department, board, or commission 
which awarded the contract and that all such penalties shall 
be withheld or deducted for the use of the State from any 
monies due the contractor for violations by him or his cub- 
contractors. 

Attention is again called to the fact that the Revised 
Code of 1915 applies only to the City of ITilmington. As 



9713 



-73- 

regards the Revised Code of 191?, it is necessary in order to 
interoret it to consider the other sections of that chapter. 

Section kk of the Act states that 'eight hours shall con- • 
stitute a legal day's work for all classes of employees em- 
ployed by the municipal corporation of the City of Wilmington. 

Section U5 states that each contract to which the City 
of Wilmington is a party which nay involve the employment of 
laborers, workmen or mechanics shall contain a stipulation 
that no such person in the employ of the City of Wilmington, 
contractor, subcontractor, or other person doing or contract- 
ing to do the whole or a part of the work contemplated by the 
contractor shall be required to work more than eight hours in 
any one calendar day, except in case of extraordinary emer- 
gency caused by fire, flood, or damage to life or property. 

CONST I-TUT I ORAL PAS I S 

No cases have been found where either the Code or the Acts 
of 1933 have been reviewed or interpreted by the courts. The 
constitutional basis would be that the state or the city as the 
employer shall have full control over the terms and conditions 
within the constitutional limits under which it will contract. 

Note: Attention is directed to the fact that the Code of 
1915 does not specify what officer or body shall determine the 
prevailing rate of wage. It would also seen that the locality 
where the work is performed is indefinite and vague. Although 
in the case of Connally v. General Construction Co., and the 
Arizona case of State v. Garfield, a prevailing wage rate 
statute containing a nenal -provision was under consideration 
and in which, because of the penal provision, the statutes 
were unconstitutional as being vague, indefinite and uncertain. 
It night well be held that the Delaware Statutes which contain 
no penal provisions might be invalid because of ambiguities. 
The interesting part of the 1915 Code is that it regulates the 
wages of the specified employees employed upon any material 
used upon or in connection with the public work covered by the 
contract. The question of how far a state can regulate the 
wages of employees of materialmen who furnish material for such 
public work deserves further consideration. 

As regards Acts of 1933. Chapter 172, which provides that 
the specifications upon which such contracts are entered into 
shall contain a minimum rate of wages which may be paid by the 
contra.ctor, it is assumed that the state, department, board, 
or commission which awarded the contract shall determine the 
minimum wage. There are no standards set up for such deter- 
mination and under the statute such awarding body might ar- 
bitrarily fix any rate of wage as the minimum which might be 
paid. The undersigned is of the opinion that both the Re- 
vised Code of 1915 an d the Amendments of 1933 are confusing 
and ambiguous. 



9713 



-74- 



Dist r ict of Columbi a 

I. ■public Works (46 V. S. Stat. L. 1494, Oh. 411) 

(a) Extent of occupation and industry covered. 

Sver; .contract in excess of $5000.00 in remount to which the 
United States or the District of Columbia is a party which requires 
or involve? the employment of Lr borers or Mechanics. 

(S) Special st.atutar;; reference to Sex. 

"."' me . 

(c) Special provisions of Legislation. 

"Every contract in excess of 56000 in amotuit, to which the 
United States or the District of Columbia is a party, which requires 
or involves the employment of laborers or mechanics in the con- 
struction, alteration, and/or repair ^f any public building of the 
United States or the District of Columbia within the geographical 
limitations of the States of the Union or the District of Colum- 
bia, shall contain a provision to the effect that the rate of wages 
for all laborers and mechanics employed by the contractor or any 
subcontractor on the public building covered by the contract shall 
be not less than the prevailing rate of wages for work of a simi- 
lar na,ture in the city, town," village, or other' civil division of 
the State in which the public buildings are located, or in the Dis- 
trict of Columbia, if the public buildings are located there, and 
a further provision that in case any dispute arises as to what are 
the prevailing rates of wages for work of a similar nature appli- 
cable to the contract which cannot be adjusted by the contracting 
officer, the matter shall be referred to the Secretary of Labor 
for determination and his decision thereon shall be conclusive on 
all parties to the contract : 

Provi ded , that in cs.se of national emergency the president is au- 
thorized to suspend the provisions of this act." 

(D) Constitutional Basis (to be inserted later) 



9713 



-75- 

DI STRICT OF COLUMBIA 

II. MINIMUM WAGS LAWS IN PRIVATE INDUSTRIES: 

A. TEE LAW: 40 Stat, at L. 960 C. 174 Comp. Stat. Section 3421- 
l/SA, Federal Stat. Anno Supra. 1919, p. 234 

1. INDUSTRIES AND OCCUPATIONS COVERED: 

Any occupation in which women and/or minors are employed. 
Occuoation includes a "business, industry, trade, or "branch 
thereof, hut shall not include domestic service. 

2. SEX AND AGE COVERAGE: 

Women of eighteen years of age and over, and minors of 
either sex under the age of eighteen years. 

5. ADMINISTRATIVE BODY CHARGED WITH ENFORCEMENT: 

The Act provides for a Minimum Wage Board to he composed 
of three members appointed hy the Commissioner of the 
District, one to he a representative of employees, one a 
representative of employers and one a representative of 
the public. The Board is given power: 

1. To ascertain and determine what wages are inadequate 
to supply the necessary cost of living to any women in any 
occuoation to. maintain them in good health and to protect 
their morals; to ascertain and determine in the manner 
provided for in the law the standards of minimum wages for 
women in z.nj occuoation; and to ascertain and determine the 
standards of minimum wages for minors in any occupation, 
and what wages for such minors are unreasonably low. 

2, To convene a Conference, if after investigation it is 
of the opinion that a substantial number of women workers 
in any given occupation are receiving wages less than those 
hereinabove referred to. The purpose of such Conference 
shall be to consider the subject investigated by the Board. 
The Conference to be composed of not more than three re- 
resentatives of employers in such occupation, three 
representatives of employees, and three members represent- 
ing the public, plus one or more members of the Board, 

After considering the subject matter submitted to it by 
the Board, the Conference shall make and transmit to the 
Board a report containing its findings and recommendations 
as to standards of minimum wages for women workers in the 
occupation under inquiry, and as to what wages are inade- 
quate to supply the necessaries hereinabove mentioned. 

Note : The Board is empowered to grant to a woman whose 
earning capacity has been impaired by age or otherwise a 
special- license authorizing her employment in any occupa— 

9713 



-76- 

tion in which only a minimum time-rate wage has been 
established at a wage less than such minimum time-rate. 

The Conference is authorized under proper circumstances 
to recommend minimum wages for learners and apprentices in 
any occupation less than the minimum wages and the length 
of time that any woman worker may be kept at such minimum 
wages, as a learner or apprentice. 

4. SPECIFIC PROVISION OF THE ACT WHICH PROVIDES FOR MINIMUM 
WAGES: 

'' After such (public) hearing the board may, in its 
discretion, make and render such an order as may be 
proper or necessary to adopt such recommendations (of 
the Conference) and carry them into effect, requiring 
all employers in the occupation affected thereby to 
observe and comply with such order. Such order shall 
become effective 60 days after it is made. After such 
order becomes effective, and while it is effective, 
it shall be unlawful for any employer to violate or 
disregard any of its terms or provisions, or to employ 
any woman worker in any occupation covered by such 
order at lower wages than are authorized or permitted 
therein. " 

5. CONSTITUTIONAL BASIS: 

The validity of this Act was ruled upon in Adkins V. 
Children's Hospital, 261 U. S. 525. In that case it was 
shown that the hospital employed a large number of women in 
various capacities with whom it had agreed upon rates of 
wages and compensation satisfactory : to such employees, but 
in some instances were less than the minimum wage fixed by 
an order of the Board ~i: ie in pursuance of the Act. The 
women with whom Appellee, Children's Hospital, had so 
contracted were all of full age and under no legal dis- 
ability. This suit was brought by the Appellee in the 
Supreme Court of the District to restrain the Board from 
enforcing its order on the ground that the same was in con- 
travention of the Constitution and particularly the Due 
Process clause of the Fifth Amendment. 

The Supreme Court of the District dismissed the bill. 
Upon appeal the Court of Appeals held the Act to be un- 
constitutional and reversed the decree of the Trial Court., 
From the ruling of the Court of Appeals the case was 
brought before this Court. The Court in considering the 
validity of the Act began by making the following state- 
ment: 

"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 
overcome beyond rational doubt. But if by clear and 
indubitable demonstration a statute be opposed tn the 



-77- 



Constitution we have no choice tut to say so. ■ The 
Constitution, by its own terms, is the supreme law 
of the land, emanating from the people, the reposi- 
tory of ultimate sovereignty under our form of govern- 



ment „ " 

The C-rort in holding that this statute was in violation of 
the Cue Process clause of the Fifth Amendment pointed out 
that the freedom of contract was subject to a variety of 
restraints. But freedom of contract was, nevertheless, 
the general rule and restrant the exception. And that the 
legislative authority to abridge it could be justified only 
hy°the existence of exceptional circumstances. The purpose _ 
of the Act was to protect the women and minors of the Districo 
from conditions detrimental to their health and morals 
resulting from wages which were inadequate to maintain 
decent standards of living. The Court pointed out that the 
classification with respect to morals was without reason- 
able basis and that it, the Act, exacted from the employer 
an arbitrary payment for a purpose and a basis navmg no 
casual connection with his business, or the contract, or 
the work the employees was engaged to do. The Court in 
holding that the Act did not cover such exceptional cir- 
cumstances as justified the legislative authority to abridge 
the freedom of contract guaranteed by the Fifth Amendment, 
pointed out the following objections to the Act: 

1. It authorized an unconstitutional interference with 
the freedom of contract included within the guarantees of 
the due process of the Fifth Amendment. (d45) 

2. It was a price-fixing law, confined to adult women who 
were legally as capable of contracting for themselves as 
men. (554) 

3. The price fixed by the Board created under the statute 
did not necessarily have any relation to the capacity of 
the employee. (555) 

4. The price fixed was based wholly on the opinions of the 
members of the Board and their advisers or some of them. 
(555) 

5. The statute applied to every occupation in the District 
without regard to its nature or the character of the work. 
(565) 

6. The standard furnished by the statute for the board 
was too vague to be of any practical application with any 
reasorable degree of accuracy. (555) 

7. The necessary cost of living for a woman worker and to 
maintain her in good health and protect her morals was not 
a precise sum - not even approximately so. (555) 



9713 



— r u~ 

8. The relation "between earnings and morals is not 
capable of standardization. 

9. The classification with respect to morals was without 
reasonable basis. (556) 

10. The legislative distinction cannot be made between men 
and women. (556) 

11. The Board fixed different minimum prices to be paid 
employees in different occupations. The prices varied 
from $1.00 to $7.50 per week. (556) 

12. The statute takes account of the necessity of only 
one party to the contract. (557) 

13. The employer is prohibited from adjusting compensa- 
tion to the differing merits of his employees. 

14. The statute compelled the employer to pay the minimum 
wage because the employee needed it but required no service 
of equivalent value from the employee. (557) 

15. The law embraced those employers whose bargaining 
power might be as weak as that of the employee. (552) 

16. It placed upon the shoulders of the employer the bur- 
den of supporting indigent persons, a burden if it belongs 
to anybody belongs to society as a whole. (558) 

17. It exacted f ror the employer an arbitrary payment for 
a purpose and a basis having no causal connection with his 
business, or the contract or the work of the employes. 
(518) 

18. It assumed that every employer was bound at all events 
to furnish a living wage. (558) 

19. The necessities of the employee were alone considered, 
and these arose outside of the employment and are the same 
when there is no employment. (558) 

It was also pointed out that the statute did not 
cover the following: 

1. It did not deal with any business charged with a pub- 
lic interest or with public work, or to meet a temporary 
emergency. (554) 

2. It had nothing to do with the character, methods, or 
periods of payments. (554) 

3. It did not prescribe hours of labor or conditions under 
which labor is to be done. (554) 



9713 



-79- 

4. It was not for the protection of persons under legal 
disability or for the provention of fraud. (554) 

5. It did not take into account any resources which the 
employee had. (556) 

6. The cooperative economies of the family group were not 
taken into account,, (555) 

7. It did not take any account of periods of business de- 
pression which might leave the employer himself without 
adequate means of livelihood. (557) 

Note: The Supreme Court has adhered to its ruling in the 
above case and the State Courts in passing on like States 
Statutes have, on the authority of the Adkins case, held 
them invalid on the ground that they violated the Due 
Process clause of the Fourteenth Amendment. However, a 
statute fixing minimum wages for women has recently been 
upheld in ex rel tipaldo v. 1,'orehead by the New York 
Supreme Court for King's County. That case will be here- 
inafter considered in detail. 



9713 



S r 'A?S OF FLO RIDA 
Public Works 

A. Industries Covered 

The act regulates every contract in. excess cf $5000 to which 
the State of Florida is a party for the construction, alteration, 
and/or repair of an" oublic buildings of the State. 

B . Occupations Covered 

Free 1: borers or free mechanics employed by any contractor 
orsubcontractor in the construction, alteration, and/or repa.ir 
of any nublic building of the State in the execution of any con- 
tract in excess of $5000 to which the State is a: jarty. 

C. \ia.~e Provisions 

The prevailing rate of wages. 

D. Typical provisions 

"^very contract *** shall contain a provision to the effect 
that the rate cf wagesfSr all laborers and mechanics employed by 
the contractors, or anv subcontractor, on the oublic buildings 
covered by the contract, shall not be less than the prevailing 
rr.te of wages for the work of a similar nature in the city, town, 
village, or other civil division of the State of Florida, in which 
the -oublic buildings or building are or is located; 

It is to be noted that the statute only covers public build- 
ings of the State of Fiorina which are constructed, altered, or 
repaired under a contract to which the State is a party. 

Free laborers or free mechanics are not defined. There is 
no separate administrative body, or officer, or board, created by 
the statute which is to determine what the prevailing rate of 
wage of work of a similar nature shall be. The statute does state, 
however, that in case any dispute arises as to what the prevailing 
rate shall be, which cannot be adjusted by the contracting officer , 
the matter shall be referred to the Secretary of the State for de- 
termination and his decision thereon shall be conclusive. It is 
assumed that elsewhere in the la.ws of Florida could he found sta- 
tutes which specify the executive officer which would award such a 
contract. 

The act, when passed, did not affect any existing contract 
or any contract th..- t was thereafter to be entered into pursuant to 
invitations for bids that were outstanding at the time of such 
passage . 

The statute does not contain any oenal provision. 



9713 



-61- 



E . Constitutional "Basis 

The statute has not been the subject of ny litigation with- 
in the State and it is deened that it is constitutional under 
the powei of the State to contract within the constitutional li- 
mitation uoon such terms as it deems orooer. 



9713 



-83- 

STATE OF ID_.HO 

I. Public Works 

A. Industries Covered 

Idaho Code. 1932 - S^c. 43-701 

All public work by or on beh If of the state, county, 

city, townshio or other municipality. 
Acts 1935 Chanter 111, S ection 1. 

State, County and Municipal and School Construction, 

repair and maintenance work under any of the laws 

of the State. 

B. Occupations Covered 

Idaho Code. Sec. 43-7' XL 

Laborers, workmen, mechanics and other persons eirroloyed 
by or on behalf of the State or any County, City, Town- 
shit), or other Municipality. 

Chanter 111. Acts 1935 

All services performed in the construction, repair or 
maintenance of all state, county, municipal or school 
work, but dees not include engineering, suoerintend- 
ence, management or office or clerical work. 

C. Wage P rovision 

Idaho Cede 1952, Section 43-701 

Current rate per diem wage. 
Acts 1933 Chap ter HI 

The prevaling rate of wages. 

D. Tvo iccl Provisions 

Idaho Code 1932 Section 43-7"! 

"That not less than the current rate of per diem wages 
in the locality where the work is performed shall be paid 
to the laborers, workmen, mechanics, and other persons so 
employed by or on behalf of the State of Idaho, or any coun- 
ty, city, township, or other municipality of said State." 

Acts of 1933. Chap. Ill 

"In all contracts Hereafter let for State, coxinty, mu- 
nicipal, and school, construction, repair and main- 
tenance work under any of the laws of this State there 
shall be inserted in each of said contracts a provi- 
sion *** that the said contractor must further pay 
the standard prevailing rate of wages in effect as paid 
in the county seat of the county in which the work is 
being performed. " 

E . Further Statutory Provision s 

Idaho Code 45-701 . referring to section 43-701 states as 



9713 



-83- 

follows: "Any sffice of the State of Idalio or of any 
county, city, township or municipality in such State ■ _ ;• 
or anv person acting under or for such officer or any 
contractor with the state or political sub-division 
violating anv of the provisions of the two preceding 
sections shall for each offense be punished bv a fine 
of not less than 450 or more than $1000 or by impri- 
sonment of not more than six months or both, in the 
discretion of the Court." 
Ch apter 111. Acts 1935. 

-jo contract shall be let to any person refusing to exe- 
cute an agreement with the stipulated provisions; it 
is further provided for any violation of any provision 
of the Act, the awarding officer who executed the con- 
tract shall retain $500 of tne contract price as 11- 
ouidated damages for such violations. It is further 
arovided that $5<>~> shall be retained at all times un- 
til the contract is coopleted. 

It is further provided that all act?, or parts of acts 
in conflict with Chapter 111 are repealed. 

The Constitution of Idaho, Article XIII, Section 2, 
adopted in 1889, contains the following provisions, 
"Hot more than eight (3l hours actual work shall con- 
stitute a lawful da^s work on all state and munici- 
pal works." In 1889, the Legislature of Idalio -passed 
8 statute regulating hours on all public works and in 
1 11, c .ap. 131, section 1, which superceded the reenact 
ient' of the bar.ic Act of 1899, there appears for the 
first time s provision regulating wages. It is to be 
noted that the Idaho Code, section 43-701 is a oenal 
statute and under the doctrine of the General Con- 
struction Co. V. Connelly, the statute would be un- 
constitutional because of indef initeness and vagueness 
and not setting forth a sufficient standard of guilt. 
It is the view of the undersigned thr t Chapter 111 of 
the Acts of 1933, repeals section 43-7 U of the Idaho 
Code, but if there are -persons still embraced within 
the terns of. that section it would be declared uncon- 
stitutional if the State attempt to enforce it. 



UOi 



nstitutional 3asis 



The right of the State as an employer to contract within 
constitution-! limitations upon such conditions as it 
deems fitting and prober. No cases have been found wherein 
Sither of the statutes have been. interpreted by the Courts. 



9713 



-84- 

ST'ATE OF ILL lira IS 

I. MINIMUM WAGE IAWS FOR PRIVATE INDUSTRIES 

A. THE LAW : Cahill's General Revised Statutes 1933, 
Chapter 48, 338-358 

1. INDUSTRIES AND OCCUPATIONS COVERED: 

"An industry, trade, or business, or "branch 
thereof, or class therein in which women 
and minors are gainfully employed, but shall 
not include domestic service in the home of 
the employer or labor on a farm." 

2. SEX AND AGE COVERAGE: 

Females over twenty-one years of age and persons of 
either sex under the age of twenty-one years. 

3. ADMINISTRATIVE BODY CHARGED WITH ENFORCEMENT: 

Director, Department of Labor. The act also provides 
for a "Wage 3oard" to be composed of not more than 
two representatives of the employers in any occupation, 
an equal number of representatives of employees in 
such occupation, and one disinterested person represent 
ing the public. The Wage Board is given power to 
investigate and ascertain the wages of women and minors 
in any occupation and to recommend fair minimum wages. 
The department is given power to accept or reject the 
report of the Wage Board. 

4. SPECIFIC PROVISIONS WHICH PROVIDE FOR MINIMUM WAGES 

A Fair "age shall mean a fairly and reasonably com- 
mensurate with the value of the service or class of 
service rendered. It is hereby declared to be against 
public policy for any employer to employ any woman or 
minor in an occupation in this State at an oppressive 
or unreasonable wage, and any contract, agreement or 
understanding for or in relation to such employment 
shall be null and void. 

5. CONSTITUTIONAL BASIS: 

No case has been found in which the validity of this 
Act was determined. The basis for the Act is the 
legislative exercise of the State police power. The 
reason for the Act is set forth in the following 
section: 

238. Necessity for reasonable standard of wages, 
Section 1. The employment of women and minors in 
trade and industry in the State of Illinois at wages 



9713 



•S5- 



unreasonably low "and not fairly commensurate with the 
value of the services rendered is a natter of grave 
and vital public concern, llany women and minors em- 
ployed for gain in the State of Illinois are not as a 
class equally equipped for bargaining with their em- 
ployers in regard to minimum fair war.;e standards, and 
"freedom of contract" as applied to their relations 
with their employers is in many cases illusory. Since 
a very large percentage of such workers are obliged 
from their week to week wages to support themselves 
and others v/ho arc dependent upon them in whole or in 
part,, they are by reason of their necessitous circum- 
stances, forced to accept whatever wages are offered 
them. Judged by any reasonable standard, wages are in 
many cases fixed by chance and caprice and the wages 
accepted are often found to bea.r no relation to the fair 
value of the servic rendered. Women and minors employ- 
ed for gain are peculiarly subject to the over-reaching 
of inefficient or unreasonable employers and are under 
unregulated competition where no adequate machinery 
exists for the effective regulation and maintenance of 
minimum fair wage standards, and the standards such as 
exist tend to be set by the least conscionable employers. 
In the absence of any effective minimum fair wage rates 
for women and minors, the constant lowering of wages by 
unscrupulous employers constitutes a serious form of 
unfair competition "against other -..iployers, reduces the 
purcliasing power of the workers and threatens the sta- 
bility of ir.rlustry. The evils of oppressive, unrea- 
sonabl and unfair wages as they affect women and minors 
employed in the State of Illinois are such as to 
render imperative the exercise of the police power 
of the State for the protection of industry and of 
the women and minors employed therein and of the 
public int r~st of the community at large in their 
health and well-being and in the prevention of the 
deterioration of our. people. 



9713 



-86- 

STATE OF KANSAS 
I . Public TTorks 

ii . Industries Covered 

Revised Statutes, 1933, as amended 1931, Ch. 314. 

The st- bute regulates the wa^e provisions of every con- 
tract for public work fo which the State or any county, city, 
township or other municipality is a party. 

B. Occupation" Covered 

Laborers or other persons employed ."by or on behalf of the 
State . 

Note: Laborers or other persons employed by or on behalf 
of ihe State are defined to be laborers or other persons employed 
by contractors or sib-contractors in the execution of any contract 
or contracts with the State or any municipality thereof. 

It is to be noted that in that section of the statute which 
requires that there shell be a stimulation in all such contracts 
for the payment of the statutory wa c e, the occupations there re- 
ferred to arc limited to laborers, workmen or mechanics. The 
statute in other parts speaks of laborers or other persons employed 
by or on behalf of the state. 

C. T< T a. : ^e Provision 

The current rate of per diem wa fe e. 

D. Typical provisions 

"hot less than the current rate of per diem wa^e in the 
locality where the v-ork is performed shall be paid to laborers or 
other persons so employed". 

E. Further Statutory Provisions 

Section 44-301 as amended, 1931 Chap. 314 defined "the 
current rate of per diem '.■ ,.c" as bein.. the rate paid to the great- 
er number of \ orkmen, laborers or .Mechanics in the same trade, 
occupation or work of a similar nature. "Locality" is defined as 
bein_, the county wherein the physical work is beina performed: 
Provided, that where cities of the first and second class are 
located in si id c -unties, each city shall be considered a 
locality. 

R,3. section 44-30 3 reads as follows: "That any officer 
of the Sta.te of Kansas, or of any count - ', city, township or 
municipality of s r >id State, or any person acting under or for 
such officer, or any contractor with the State of Kansas, or any 
count,:, city, township or other municipality thereof, or other 
person violating any of the provisions of this act, shall for each 
offense be punished oy a fine of not less than $50 nor more than 
$1,000, or by imprisonment , not more than six months, or both 

9713 



fine and imprisonment., in the discretion of the court". 
F . Constitutional Basis: 

The right of the state 'as an ennloyer to contract within 
constitutional limitations upon such conditions as it seems fitting 
and proper. 

This statute was considered by the Supreme Court of Kansas 
in the case of State v. Blaser, et al, (193?) 26 Pac. (2d) 593. 
The case was an appeal by the State from the judgment of the 
trial court sustaining a motion' to quash an information which 
attempted to charge the defendants with violating section 44-201, 
in that while executing a public contract the defendants did 
" enrol oy labo rers and ot her persons at a less wa^e than the current 
rate o f per diem wa^e in the l oc ali t y where s aid w ork and labor 
was performed ". The State contended that R.S. 54-205 provided 
the penalty sought to be imposed'. The motion was predicated upon 
two e rounds : first, that the statute was so indefinite ?s to 
be unconstitutional and second, that the information did not state 
facts sufficiently definite to fdrm a basis of a prosecution. The 
Court held. 

"From what has been said above we conclude, first, that the 
provision in the statute to the effect that the contractor 
should not nay less than the current rate of per diem 
wa u .es was not designed or intended by the Legislature to 
form the basis of a criminal prosecution, but that its 
purpose was to font the basis' of determining civil liability 
to which might grow out of the relations of the parties; 
second, if it were intended to form the basis of criminal 
liability, it is void for uncertainty, under the authority 
of Connally v. General Const. Co., suora; and, third, 
that the information itself was too indefinite to charge 
a specific offense. 
The judgment of the court below is affirmed". 

Prior to the case of Connally v. General Const. Co. 269 
U.S. 385, 70 L. Ed. 337, 'the Kansas statute R.S. 44-201 was 
identical with a statute with the State of Oklahoma which was 
considered in the Connally case and held void for uncertainty 
in that the current rate of per diem wages did not denote a spec- 
ific or definite sum but a minimum, maximum and intermediate amounts, 
indeterminately varying from time to time and because the phrase 
"locality" was also indefinite and uncertain. Following the 
decision of the Supreme Court in the Genual ly case the Legislature 
of the State of Kansas in 1931 (Chanter 214, Laws 1931) amended 
R.S. 44-301 so "as to define the phrase "the current rate of per 
diem wage" and the phrase "locality". As to the amended statute 
the Court said: 

"Disposing first of the 'word "locality", as thus 
defined and as applied to this case, we have no diffi- 
culty in saying that, since the work here was bein done in 



9713 



' -88- 

the city of Wichita, a city of the first class, the city 
is the locality referred to in the statute, although 
the contract under which the work was being; done was made 
with the board of education of the city. Looking at the 
definition given in the statute of the phrase, "the current 
rate of oer diem wages," and comparing that with the 
reasons c ,iven by the Supreme Court in Connally v. 
General Const. Co., supra, the definition seems to be open 
to all the objections stated against it in that opinion. 
It is conceded in the argument in this case that our 
statute (il.3. 44-201), in so far as it attempted to fix 
criminal liability upon contractors or others for not 
paying "the current rate of per diem wages", was open 
to the sane infirmities as the Oklahoma statute, held 
invalid in Connally v. General Const. Co., supra. But 
it is argued that the amendment made in 1931 defining the 
term, "the current rate of per diem wa b es", cured that 
defect, and rendered the statute valid. - Xle are unable to 
see that it has that effect. In fact the definition does 
but little, if anything, more than to paraphrase the 
objections made to the statute oy the court in Connally 
v. General Const. Co. sunra. 1 ' 

As can be seen from the holding of the Court it was held 
that R.S. 44-?05, which the State contended provided the penalty 
so.iht to be irmosed, did net form a basis of criminal prosecution 
for the ■oayment of less than the current rate of ~ier diem wages 
and that if R.S. 44— ?05 did so nrovide, 44-201 was void for un- 
certainty under authority of the Connally ca.se. 

The case is interesting also as regards the drafting of 
legislation and revision of statutes. The case reviews the hour 
and wage legislation of the state. Such'legislation was originally 
passed in 1891. (Laws 1891, Chapter 114). The title of that act 
as passed read as follows: 

"An act constituting eight hours a day's work for all 
laborers, .workmen, mechanics and other persons employed 
by or on behalf of the State of Kansas, or by or on 
behalf of any county, city, township or other municipality 
in said State, or ~oy contractors or others doing work or 
furnishing material for the State of Kansas, or any county, 
city, township, or other municipality thereof, and pro- 
viding penalties for violation of the provisions of this 
act. " 

It contained five sections: 

Section 1 related to hours of labor; provided that not 
loss than the current rate of per diem wage should be paid to 
laborers, workmen, mechanics and other nersons employed by or on 
behalf of the State or any of its nolitical subdivisions. 

Section r " provided that all contracts made by or on be- 
half of the State or any of its nolitical subdivisions for the pcr- 



9713 



"89- 

formance of any work or' the furnishing of any material manufactured 
within the .:, . t should, be deemed as made upon the basis of eight 
hours constituting a. day's work and provided further fcha.t it should 
be unlawful for any corporation, -person or ncrsons to require any 
such laborer, workmen, mechanics or other persons to worl: more 
than eight hours per day. 

Section 3 provided a fine of not less than $50 nor more 
than $1000 or imprisonment for not more than si:: months or both 
fine and imprisonment for violation of any of the provisions of 
the Act by any public officer or any persons acting under or for 
such officer or any contract with the State, etc. 

Section 2 of the Act is nov. R.S. 44-204 and section 3 is 
44-205. The Court says in the instant case that section 2 of the 
Act of 1831 was the only one which specifically characterized any 
act or acts as being unlawful, namely the requiring or permitting 
the laborers, workmen or mechanics to work more than eight hours 
a. day. It was further said by the Court that the provision with 
reference to "current rate of ner diem wages" was not referred to 
in the title nor was its violation specifically ma.de unlawful. 
It was said that the framers of the bill (Chanter 114, Laws 1891), 
nor the Legislature did not intend to make that provision a crimin- 
al offense. 

Section 1 of the Act was amended in 1913. As amended it 
became section 5870, General Statutes of 1915, and during a process 
of a revision of the statutes section 1, as amended, was divided 
into two sections becoming R.S. 44-201 and R.S. 44-202. During the 
nrocess of the revision of the statutes the title originally used 
in Chanter 114, Laws 1091 was omitted. As regards the amendments 
and revisions of th< statutes the Court was faced with the question 
of whether or not the Committee appointed to revise the statutes 
of the State end the Legislature which enacted the revised statutes 
made the provisions relative to the current rate of per diem wages 
a criminal offense. The Court held that the Legislature of 1891 did 
not make and did not intend, to make the violation of the provisions 
in section 1 of the Laws of 1891, pertainin., to the current rate 
of per diem wages ..iade specifically unlawful. And that if such was 
the intention of the Committee appointed to revise the statutes 
and the Legislature which enacted the revised statutes, the statute 
was void for uncertainty. 



9713 



-90-. 
STATE OF KMTOCKY 

PUBLIC WORKS (Sec. 43^9, Carroll's Statutes 1930) 

A. Extent of occupation and industry covered. 

Public Roads 

Manual or day labor, skilled later, foremen, assistant 

engineers . 

B. Special Statutory reference to sex. 
Hone . 

C. Special Provisions of Legislation. 

"Wage to "be allowed "by fiscal court". 

"Every able-bodied man for manual labor, the prevailing 
wages of tne vicinity in which work to be done, but not 
less than $1.00 nor more than $3.00 per day according to 
service rendered. 

Skilled labor, foremen and assistant engineers not more 
than $5.00 per day. 

Day's work not less than 3 hours of actual labor. 

D. Constitutional Basis (to be supplied later) 



9713 



-91- 
S TATZ OF I.AI1T3 
(l.) PUBLIC WOBKS (Clap. 238; Acts of 1932. 

A. Extent of occupation -and industry covered. 

Public works including State highways. Laborers employed 
in. 

B. Specific Statutory reference to Box. 
None . 

C. Special provisions of Legislation. 

Wages not less than prevailing rate paid by State for sim- 
ilar work done by highway commission. Zach day of employ- 
ment at less is separate violation. 

D. Constitutional Basis (to be supplied later) 



9713 



-92- 

STAT3 OF MABYLAITD 
PUBLIC WOBKS (Code Public Laws, 1930, Act 4, Sec. 516-1516 B) 

A. Extent of Occupation and Industry covered. 

Laborers, workmen or mechanics employed by contractors 
or sub-contractors in Public works in Baltimore. 

B. Specified Statutory reference to Sex. 
Hone . 

C. Special provisions of Legislation. 

Hot less than current rate per diem in locality where 
work is performed. 

Applies against Llayor and City Council of Baltimore or 
person acting under or for them; contractor or sub-con- 
tractor or person acting for them, 

D. Constitutional Basis (to be inserted later). 



-93- 
STATE OF MASSACHUSETTS 

MINIMUM WAGE LA1S-IIT PRIVATE INDUSTRIES 
A. THE LAW: Session Laws 1933, Chapter 267 

1. OC CUP ATL~ ITS OR INDUSTRIES COVERED: 

Any occupation, industry trade or business or "branch 
thereof or class of work therein except domestic 
service in the home of the employer or' labor on a 
farm. 

2. SEX AND AGE COVERAGE: 
Females and minors 

3. ADMINISTRATIVE BODY EMPOWERED TO ADMINISTER THE LAW: 
Commissioner of Labor and Industries 

4. CONSTITUTIONAL 3ASIS: 

There has been no test on this law. Under the lav/ of 
1921, (*) which provided publicity as the penalty for 



(*) General Laws 1921 - Chapter 23, Sections 1, 2 and 7. Chapter 151 



violating the wage fixed by a minimum Wage Commission, 
A test had in the case of Holcomb et al. v. Creamer 
et al. (Supreme Court of Massachusetts 1918) 
120 N.E. 354. 

In this case it was shown that a proceeding was had in 
accordance with the statute to determine wages paid to female 
employees in laundries. A Determination was made fixing a 
minimum weekly wage schedule. The publication was made as 
provided in the Act. Thereafter the Commission proceeded to 
investigate wages actually paid, in order to determine if 
employers were complying with the recommendations. The 
respondents, who were owners or officers of corporate owners 
of laundries, refused to furnish the required information. 
This proceeding was brought to compel them to do so. The 
Court stated that the question presented was the constitut- 
ionality of St. 1912, C. 706 as amended by St. 1913, cc.330 
and 673 and St. 1914, c. 638, establishing the Minimum Wage 
Commission. Section 3 states the duty of the Commission to be: 

"To inquire into the wages paid to female 
employees in any occupation in the Commonwealth, 
if the Commission has reason to believe that 
the wages paid to a substantial number of such 
employees are inadequate to supply the necessary 

9713 



-94- 

cost of living and to ' maintain the worker in 
health." 

The Court pointed out that this statute. did not prohibit any 
woman and her employer from making and enforcing any contract 
respecting her labor. The authority of the Board was limited 
to the making of recommendations. It could not issue any 
orders. The aim of the Act was to bring to bear the forces of 
public opinion in support of the recommendations of the 
Commission. The fact that the Commission wad directed to make 
recommendations as to wages did not add an element of 
compulsion in law. The members of the public were free to 
decide from the facts stated whether the conclusions of the 
Coi;imission were just and wise or oppressive and vain. The 
Court in holding the Act valid and in referring to the rights 
protected by the Federal Constitution said: 

"But these guaranties are subject to the 
police power* Without undertaking to define 
that power, it comprehends rational action by 
the legislative department for the. protection 
of the public health, morals and good order, 
These guaranties do not go to the extent of 
protection against publicity respecting con- 
tracts and women and minors, which the con 
sonsus of opinion of the Commonwealth, as 
formulated in a statute requiring impartial 
investigation by a Public Board, declares 
wanting in affording to them necessary sup- 
port ," 

The Vjuestion of the validity of this Act has never been determ- 
ined, by the United States Supreme Court. The Massachusetts type 
of Legislation applies only a moral force for the purpose 
of enforcing a minimum wage. Other types of legislation 
for this purpose which had been passed upon by the Supreme 
Court add physically to moral force for the purpose of en- 
forcing minimum wages. 



9713 



-95- 

STATE 0? MINNESOTA 

MINIMUM-WAGE LAWS III PRIVATE INDUSTRIES 

A. THE LAW: General Statutes, 1927; Sections 4033-4034, 
4210-4232. 

1. OCCUPATIONS OE INDUSTRIES COVERED: 

Any occupation in which women ^.nd/or minors are 
employed. Occupation includes any business, indus- 
try, trade, or "branch thereof. 

2. SEX AND AGE COVERAGE: 

Wo '."men of eighteen years of age or over and minors; 
(females under the age of eighteen years, males under 
the age of twenty-one years) . 

3. ADMINISTRATIVE BODY EMPOWERED TO ADMINISTER THE LAW: 

Industrial Commission. Commission composed of three 
members appointed "by the Governor and "by and with the 
advice and consent of the Senate. 

4. SPECIFIC PROVISIONS OF THE ACT WHICH PROVIDE FOR 
MINIMUM WAGES: 

"If after investigation of any eccupation 
the Commission is of opinion that the wages 
paid to one-sixth or more of the women or 
minors employed therein are less than living- 
wages, the Commission shall forthwith pro- 
ceed to establish legal minimum rates of 
wages for said occupation, as hereinafter 
described and provided." 

If after investigation the Commission is of. -the opinion 
that wages paid to one-sixth or more of the women and minors em- 
ployed in the occupation in question are less than liv- 
ing wages the Commission shall proceed to establish legal 
minimum rates of wages for that occupation by issuing an 
order making the wages thus determined the minimum wage 
in the occupation throughout the State, or within any 
area of the State if differences in cost of living war- 
rant this distinction. 

5. CONSTITUTIONAL BASIS: 

In William v. Evans et al. ( Sup. Ct. , Minn. ) 165 II. W. 495, 
the Court pointed out that the legislature in 1913 passed 
an Act establishing a Minimum Wage Commission and provid- 
ing for the determination and establishment of minimum 
wages for women and minors. The Defendants, Members of 
the Commission, after a hearing and investigation made 

9713 



-96- 

STATS OF MIITOZSOTA (Cont'd) 

tvo orders fixing minimum wages for women and minors, 
these actions were brought to restrain the enforcement 
of the orders on the ground that they were unconstitu- 
tional. That is the issue in this case. In sustaining 
the validity of the order the Court said: 
That there was a general opinion that women in trades 
were underoaid, that in many cases the pay they received 
for work during all the working hours of the day was not 
enough to meet the cost of reasonable living. Public in- 
vestigations by publicly appointed commissions had resulted 
in findings to that effect. Starting with such facts there 
was a general opinion that these conditions were dangerous 
to the morals and her lth of the workers and of future gen- 
erations as well. In the economic strife women were not 
on equality with men. The Court further said that such 
conditions exist and that laws looking to that end, i.e., 
to promote health, peace, morals, education or good order 
of the public were greatly and immediately necessary to 
the public welfare. It was held that the inequality of 
difference between men and women in the matter of ability 
to secure a just wage and the consequences of an inadequate 
wage the legislature may by law compensate for the differ- 
ence. On this basis the statute was held valid. 

In Stevenson v. Sinclair (Sup. Ct ., Minn. , 1925) 201 N.W. 629, 
plaintiff, a minor, recovered judgment against defendant 
for the difference between the agreed wages the minor had 
been paid for his services and the amount fixed under the 
so-called Minimum Wage Act (Chapter 547, Laws 1913), and 
defendant appeals to this Court. This Court affirmed the 
judgment of the lower Co^^rt on the ground that the Act had 
been sustained in William v. Evans (supra) and that in sub- 
sequent decision of Adkins v. Children's Hospital, 261 
U.S. 525 the Supreme Court took pains to exclude from the 
decision the question of the validity of the law as ap- 
plied to minors. In sustaining this portion of the Act 
the Court said: 

"The law is attacked as unconstitutional. It 
was sustained by this Court in William v. Evans, 
139 Minn. 32, 165 N.W. 495, 166 N.W. 504, L.R.A 
1918F, 542, where its applicability to women was 
involved. Later a similar Act passed by Congress 
for the District of Columbia was considered by 
the Supreme Cotirt of the United States and held 
violative of the federal Constitution, insofar 
as it attempted tj fix the minimum wage for adult 
women. Adkins v. Children's Hospital, 261 U.S 525, 
43 S. Ct.394, 67 L. Ed. 785, 24 A.L.R. 1238. How- 
ever, the Court took pains to exclude from the de- 
cision the question of the validity of the law as 
applied to minors. v 

9713 



-97- 



S TATE OF MHTIT5S0TA (Cont'd) 

"We may assume for the purpose of this decision 
that the Adkins Case renders the part of our Act 
fixing a minimum wage for women repugnant to the 
federal Constitution; hence it is useless to dis- 
cuss the first proposition advanced "by appellant. 
It may well he left, as was done "by the Court in 
Folding Furniture Works v. Industrial Com. (D.C.) 
300 F 991. 

"That the provisions of our Act relating to the 
minimum wages for minors are repugnant to the 
federal Constitution we cannot accept as settled. 
The prediction from Stetler v. O'Hara, 243 U.S. 629, 37 S. Ct. 
475, 61 L. 3d. 937, and the Adkins Case would seem 
to be that as to minors the law would now "be held 
"by that Court not to exceed the legitimate exorcise 
of the police pov/er of the state. That in the op- 
inion of this Qourt it in any manner transgresses 
the limits of the state Constitution cannot "be 
urged with any hope of success, since the opinion 
in William v. Svans, supra, was rendered." 



9713. 



•98- 



STATE OF MONTANA 

1. Public TTorks (Act 1931, ch. 102, sec. 1) 

A. Extent of Occupation and Industry Covered. 

All contracts for State, County, Municipal and School con- 
struction, repair, and maintenance work, Does not include 

engineering, superintendence, management or office clerical 
-or 1 :. 

B. Specific Statutory r eference to Sex. 
None . 

C. Special provisions of Legislation. 

Contractor must give preference to Montana resident; must 
pay sta:xlard prevailing rate of wages in effect as paid in 
the county seat of county in which work is being done. No 

contro.ct to "be let to any one refusing to accept provisions 
of statute. Act not be enforced in such way as to conflict 
•?ith Federal Statute prescribing labor preference to soldiers, 
sailors and marines. 

D. Constitutional Basis ( to be inserted later) 



9713 



-99- 
STAT3 OF NEVADA 

I. Public Works (Act of 1933, ch. 40) 

A. Extent of Occupation and Industry covered. 

Public buildings, public highways and other public works, 
erected by state, county, district, municipality or other 
sub-division of State of Nevada., or any board or commission. 

All public works by parson, firm, association, company or 
corporation under contract with state, county, district, 
municipality or other sub-division or any board or commission 
or contractor with state. 

B. Specific reference to sex. 
I.!ale person over age of 18. 

C. Special, provisions of 1 egis lation. 

Unskilled labor not less than $4.00 per 8 hour day or 50^ 
per hour. Each, male person over 13. 

D. Constitutional Basis. 



9713 



-100- 

STATE OP NEW HAMPSHIRE 
I. LIINILlTu WAGE LA7/ FOR PRIVATE INDUSTRIES: 
A. TEE LAW : Acts of 1933, Chapter 152. 

1. OCCUPATIONAL AND I1TDUSTPJAL COVERAGE: 

"Aii industry'-, trc.de, or business, 
or branch thereof, or class therein 
in which 'TOinen or minors are gain- 
fully employed, but shall not in- 
clude domestic service in the home 
of the employer or labor on a farm." 

2. SEX AED AGE COVERAGE: 

Women of 21 years or over and either sex 
under the age of 21 years. 

3. ADMINISTRATIVE BODY CHARGED ".7ITH HNFORCEIiEnT: 

Labor Commissioner, The Act also 
provides for. a Wage Board to be composed 
of not less than three repre "■ ■: :ives of 
employers in pny occupation- an equal number 
of representatives of employees in such oc- 
cupation, and not more than three disinter- 
ested persons representing the public to 
be appointed oy the Commissioner; the repre- 
sentatives of errployers and employees to 
be selected so far as practicable from 
nominations submitted by employers and em- 
ployees. 

The Board is given the duty and j^over to investigate 
and ascertain the wages of y-omen and minors employed 
in any occupation, end to recommend minimum fair 
wages. The Commissioner is given the power to ac- 
cept or reject the report of the Wage Board. 

4. SPECIFIC PROVISION PROVIDING LlINIMULI WAGE: 

A Fair "„'a..°:e "shall mean a wage fairly and rea- 
sonably commensurate with the value of the ser- 
vice or class of service rendered. 

"It is hereby declared to be against public 
policy for any employer to employ any woman 
or minor in an occupation in this State at 
an oppressive or unreasonable v/age***, and any 
contract, agreement or understanding for or in 
relation to such employment shall be null and 
void. " 

On the petition of 50 or more residents 
of the State, an investigation must be 
made of the wages being paid to women 

9713 



-101- 

and minora in any occupation to ascertain 
whether otraressive end unreasonable wages 
are beirig paid. 

CONSTITUTIONAL BASIS: 

Ho case has "been found in which the validity of 
this Act was judicially determined; The defini- 
tion of "fair wage ,r ~. as set' forth, distinguishes 
it from the Act of Congress which was held in- 
violate in the' case of Adkins against Children's 
Hospital, 261 U.S. 525. In that case the Court 
nointed out that the minimum" wage provided that 
an Act of Congress did not necessarily have a relation 
to the capacity of the employee. It -was this 
■• objection which the Legislature attempted to avoid 
"by defining "fair vrge n l which was made the minimum 
wrge to women fairly and reasonably commensurate 
with the value of this service or clsss of service 
rendered. 



G713 



-102- 

STATE OF HEW J5RSEY 

1. I'u-hlic ^rorks (Act. of 1931, ch.242; Sec. 107-72das amended 1 932, 

ch. 230) 

A. Extent of occupation and industry covered. 

All contracts to which state or any p olitical sub-division 
is party requiring employment of Laborers or machanics in con- 
struction, alteration, and/or repairs of public buildings, 
furnishing material. 

B. Specific reference to Sex. 
None . 

C. Special provisions of Legislation. 

Hot less than prevailing rate of per diem wages in the locality 
where work is performed. Prevailing rate to be that paid by the 
contractors and employers employing a majority of the worker of 
any croft in the county, city, township, or municipality in which 
the work is being done. 

In case of dispute, referred to Commissioner of Labor and his 
decision is conclusive. 

D. Constitutional Basis 



9713 



-103- 
3TATE OF HEW JERSEY 
I. MIHIMUM "WAGE LAW FOR PRIVATE iiJDUSTEIES : 

A. THE LAW : Session laws 1933, Chapter 152. 

1. INDUSTRIES AiiB OCCUPATIOilS COVERED: 

Any occupation, i«eo, any industry, trade or business or 
branch thereof or class of work therein in which women or 
minors are gainfully employed, but shall not include 
domestic service in the home of the employer, or labor on 
a farm. 

2. SEX ALE) AGE COVERAGE: 

All females of 21 years or older and minors of either sex 
under the age of 21 years of age. 

3. AD! III.'I STRATI VE BODY III POWER TO ADMINISTER THE LAW: 

The Board is given the -^ower and duty to investigate and 
ascertain the wage of women and minors employed in any 
occupation. To differentiate and classify employment 
according to the na.ture of the service rendered and re- 
commend minimum fair wage varying with locality. To re- 
commend a. suitable scale of rates for learners and 
apprentices which may be less than the regular fair wage 
rate. To issue to a woman or a minor including a learner 
or on anorentice, a State license where earning capacity 
is impaired oy age or physical or mental deficiency or 
by injury, such wage may be less than the minimum fair 
wage rate and for such period of time as shall be fixed, 
all to be stated in the license. On its own motion or 
after conferring with the Commissioner or on petition of 
50 or more residents, either while the minimum wage order 
is directory or mandatory to reconvene the Wage Board or 
shall appoint a new one for consideration of modification 
of minimum wage; after notice of 15 days a public hearing. 
To put into effect such subsequent established wage. 

"Wage Board" to be set up by "Commissioner"; the 
word "Commissioner" meaning the Commissioner of Labor. 
The Wage Board composed of not more than 3 representatives 
of employers in an occupation, an equal number of repre- 
sentatives of employees in such occupation, and not more 
than 3 disinterested -oersons representing the public. 
Representatives of employers and employees to be selected 
so far as practicable from nominations submitted by them. 

4. SPECIFIC PROVISION PROVIDING FOR MINIMUM WAGE: 

A Fair Wage "shall mean a wage fairly and reasonably 
commensurate with the value of the service or class of 
service rendered. 

9713 



9713 



-104- 

"It is hereby declared to toe against pu"blic policy for any 
employer to employ any woman or minor in an occupation in 
this State at an oppressive or unreasonable wage .... and 
any contract, agreement or understanding for or in relation 
to such employment shall toe null and void." 

5. CONSTITUTIONAL BA.SIS: 

No case has "been found in which the validity of this Act 
has "been determined. The definition of "fair wage", as 
set forth, distinguishes it from the Act of Congress which 
was held inviolate in the case of Adkins against Children's 
Hospital . 261 U.S. 525. In that case the Court pointed 
out that the minimum wage provided that an Act of Congress 
did not necessarily have a relation to the capacity of the 
employee. It was this oto'jection which the Legislature 
attempted to avoid toy defining "fair wage" which was mada 
the minimum wage to women fairly and reasonably commensurate 
with the value of this service or class of service rendered. 

It is possible that this Act could also toe distinguished 
from the Act involved in the A die ins case on the ground that 
it applies to exceptional or emergency circumstances such 
as mentioned in that case. 






-105- 

State of Hew York 

I. Puhlic tforks (Cahill 's 'Consolidated Saws, 1930, Ch. 32, Sec. 320 as 

amended 1933, Ch. 731) 

A. Extent of occupation and industry covered. 

Pn.tlic works' or upon any material to "be used. Exempt .from pro- 
visions of law are: 

Stationary firemen in State Hospitals. 

Other persons, except mechanics, employed in State Insti~ 
tutions, Engineers, electricians, and elevator men in the 
division of Public Buildings of the department of public 
works during sessions of Legislation. 

Employees in construction, maintenance and repair of high- 
ways and water works outside of limits of cifies and 
villages. 

B. Specific reference to Sex. 
lone 

C. Special provisions of Legislation. 

Prevailing rate of a day's work in same trade or occupation in 
the town, city, village, or other civil division of State where 
work is "being done for each laborer, workman or mechanic, Pre- 
vailing rate is that paid to majority of laborers, workers or 
mechanics in seme trade or occupation. If no majority, then to 
greater nunfoer. If such greater numoer is more than 49^, If 
less than 40$ rate is average. 

D. Constitutional Basis (to "be inserted later) 



9713 



-106- 

STATE OP NEW YORK 

II. MINIMUM WAGE LAW FOR PRIVATE INDUSTRIES: 

A. THE LAW : Cahill's Consolidated Laws of New York, 1933 

Supplement, Chapter 32, Labor Law, Article 19. 

1. OCCUPATIONAL AXED INDUSTRIAL COVERAGE: 

"An industry, trade, or business, or branch thereof, 
or class therein in which women or minors are gain- 
fully employed,, but shall not include domestic 
service in the home of the employer or labor on a 
farm. " 

2. SEX AND AGE COVERAGE: 

Females of 21 years or over and a person of either 
sex under the aga of 21 years. 

3.. ADMINISTRATIVE BODY IN POWER TO ADMINISTER THE LAW: 

The commissioner or director of Labor is given the power 
and charged with the duty of establishing a Wage Board. 
The Wage Board is to be composed of not more than three 
representatives of employers in any occupation, an equal 
number of representatives of employees in such occupation, 
and. not more than three disinterested persons represent- 
ing the public, (The Wage Board is given the rcower to in- 
. vestigate .and ascertain .the wage of women and minors em- 
ployed in. any pcjL.T~v. ion- 

The Act further'' pro vMes 'that within sixty days of 
its organization a wagi; board shall submit a. report in- 
cluding its recommendation as to minimum fair wage stand- 
ards for the .women or minors in the occupation or occupa- 
tions the wage standards of which the wage board was ap- 
pointed to investigate,: 

It is further provided that a recort from a wage 
board shall by submitted to the commissioner who shall 
within ton days confer with the director and accept or 
rejr-ct such report. If the report is rejected the com- 
missioner shall resubmit the matter to the same wage 
board or to a new wage beard with a statement of the 
reasons for the resubmission. If the report is accepted 
it shall be published together with such proposed admin- 
istrative regulations as the commissioner after conferring 
with the director may deem appropriate to implement the 
report of the wago board and to safe-guard the minimum 
fair wage standards- to be established, and notice shall 
be given of a public hearing to be held by the com- 
missioner or the director not sooner than fifteen nor 
more than thirty days after such publication at which 
11 persons in favor of or opcosed to the recommendation 
contained in such report or in such proposed regulations 
may be heard, 

9713 



-107- 

Within ten days after such hearing the commissioner 
shall confer with the director and approve or disapprove 
the report of the wage "board. If the report is disapprov- 
ed the commissioner may resubmit the matter to the same 
"board or to a new wage board. If the report is approved 
the commissioner shall make a directory order which shall 
define minimum fair wage rates in the occupation cr oc- 
cupations as recommended in the report of the wage board 
and which shall include such proposed administrative 
regulations as the commissioner may deem appropriate to 
implement the report of the wage board and to safeguard 
the minimum fair wage standards established. 

4. SPECIFIC PROVISION PROVIDING MINIMUM WAGE: 

A Fair Wage "shall mean a wage fairly and reasonably 
commensurate with the value of the service or class of 
service rendered. 

"It is hereby declared to be against public policy 
for any employer to employ any women or minor in an 
occupation in this State at an oppressive or unreason- 
able wage..., and any contract, agreement or understand- 
ing for or in relation to such employment shall be 
null and void." 

5. CONSTITUTIONAL BfcSIS: 

Section 550 sets forth as follows: 

"(Factual "background) The employment of women and minors 
in trede and industry in the S'tr-te of New York at wages 
unreasonably low and not fairly commensurate with the 
value of the services rendered is a matter of grave and 
vital public concern. Many women and minors employed for 
gain in the State of Hew York are not as a class upon a 
level of equality in bargaining with their employers in 
regard to minimum fair wage standards, and 'freedom of 
contract' as applied to their relations with their em- 
ployers is illusory. Since a very large percentage of 
such workers are obliged from their week to week wages 
to support themselves and others who are dependent upon 
them ill whole or in part they are, by reason of their 
necessitous circumstances, forced to accept whatever wages 
are offered them. Judged by any reasonable standard, 
wages are in many cases fixed by chance and caprice and 
the wages accepted are often found to bear no relation 
to the fair value of the service rendered. Women and 
minors employed for gain are peculiarly subject to the 
overreaching of inefficient, harsh or ignorant employers 
and under unregulated competition where no adequate ma- 
chinery exists for the effective regulation and mainten- 
ance of minimum fair wage standards, the standards such 
as exist tend to be set by the least conscionable employ- 
ers. In the absence of any effective minimum fair wage 



9713 



-108- 



for women anci minors, the constant lowering of wages by 
unscrupulous employers constitute a serious form of un- 
fair competition against other employers, reduces the 
purchasing power of the workers and threatens the stabi- 
lity of industry. The evils of oppressive, unreasonable 
and unfair wages as they affect women and minors employed 
in the state of New York are such as to render imperative 
the exercise of the police power of the state for the pro- 
tection of industry and of the women and minors employed 
therein and of the public interest of the community at 
large in their wealth and well-being and in the preven- 
tion of the deterioration of the race. In the consid- 
ered judgment of the legislature this article is con- 
stitutional." 

In People ex rel, Tiualdo V. Morehead a proceeding 
by habeas corpus was instituted by the relator to test 
the validity of this law. The relator was in prison 
under an indictment which charges in substance that he, 
as manager of a laundry in Brooklyn, paid adult women 
employees a lesser sura than the. minimum wage fixed for 
that class of employees by the Industrial Commissioner 
pursuant to the provisions of the act. He asserts that 
the statute contravenes the 14th Amendment of the Federal 
Constitution, and Article 1, Section 6, of the Constitu- 
tion of the State of New York, in that it operates to de- 
prive him of the liberty and property without the process 
of law, and also operates to compel him to be a witness 
against himself in a criminal case. 

The Court said "The underlying thought of relator's 
contention appears to be that the right of freedom of 
contract emanates from the Fifth Amendment to the United 
States Constitution, which provides that no person shall 
be deprived of life, liberty or property without due pro- 
cess of law; and consequently that the minimum wage law 
here under consideration, is that it deprives an adult 
woman in full possession of her normal faculties of the 
right freely to contract with reference to her services, 
violates the similar inhibition upon States found in the 
due process clause of the Fourteenth Amendment. 

"In support of his contention relator relies prin- 
cipally upon the case of Adkins v. Children's Hospital 
(2S1 U.S. 525)." 

The Court referring to the Adkin s case said: 

"It is o'f special significance that in the Adkins 
erro«., w i+h reference to the conception of liberty as in- 
volved i~ 4K*. -orde li&ghJb of contract' the court wrote: 
'An interference with this liberty so serious as that 
now under consideration, and so disturbing of equality 



9713 



-109- 



of right, mast be deeded to be arbitrary, unless it is 
supportable as a reasonable exercise of the police power 
of State.' And' again with reference to freedom of con- 
trrct the court wrote: 'There is 9 of course, no such 
thing as absolute freedom of contract. It is subject 
to a great variety of restraints, But freedom of con- 
tract is, nevertheless, the general rule and restraint 
the exception; and the exercise of legislative author- 
ity to abridge it can be justified only by the exist- 
ence of exceptional circumstances.....' 

"Here is a distinct and unequivocal pronouncement 
that a reasonable exercise of the police power may work 
an interference with liberty of contract that is not 
necessarily to be deemed arbitrary, and that an abridge- 
ment of that right may be justified by 'exceptional cir- 
cumstances' . " 

"An attempt to exhaustively review the substance of 
oral and written characterizations of the effect of the 
world-wide depression would serve no useful purpose. 
The court may take judicial notice that almost without 
warning it came upon mankind, with an unforeseen and 
irrestible onrush that bound and fettered the world in 
its devastating grip. Business collapsed, our concep- 
tions of economic and social securities were shattered, 
peace of mind was transformed into dread apprehension, 
contentment into unrest, comfort gave way to hardship 
and sufficiency to privation.. As a result of this uni- 
versal catastrophe, thousands of women reared to a life 
of ease, maintained in comfortable surroundings inex- 
perienced with the hardship of proverty, with no occu- 
pational training and with no business experience, sud- 
denly found themselves engulfed in the whirlpool of in- 
dustrial strife, forced there by a calmity of hitherto 
unknown magnitude, compelled to there engaged in a mer- 
ciless and to them unfamiliar competition. 

"Do the dictates of reason and the common experience 
of mankind impel the conclusion that under conditions 
these inonen are on a parity with men in their ability 
to distinguish between legitimate and unscrupulous busi- 
ness -practices, between the honest and dishonest employ- 
er, between fair dealing and chicanery, between 'an 
oppressive and unreasonable wage' and a fair wage as 
defined in the Act? The Legislature has answered the 
inquiry in the negative as evidenced by the last sentence 
in Section 550, which reads: 'In the considered judg- 
ment of the Legislature this article is constitutional.' 

"This declaration, unusual in a statute, indicates 
a legislative familarity with the decisions of the higher 
courts with reference to legislation of this general 
character and&nounts to a pronouncement that in the 
Legislature's opinion, the act insofar as it interferes 



9713 



-110- 



with liberty of contract, is justified as a reasonable 
exercise of the police power by the existence of these 
'exceptional circumstances' ." 

The Court on the above reason held the Act valid. It 
pointed out that the police power was inherently vested 
in the Legislature, that it was never • surrendered by 
the several States and consequently its free exercise 
was not necessarily impeded by the 14th Amendment to 
the Federal Constitution. 



f j7' 



-111- 

STATE OF NORTH DAKOTA 

I. MINIMUM WAGE LAWS IN PRIVATE INDUSTRIES 

A. THE LAW: Session Laws, 1919, (Ch. 174, pp. 317-322; Strop, to 

Compile Laws 1913-1925, Sections 396a4, 396bl~396bl8.) 

1. OCCUPATIONS OR INDUSTRIES COVERED: 

Any occupation; occupation to include a busi necc, industry, 
trade, or "branch thereof, except agricultural or domestic 
service. 

2. SEX ACT AGE COVERAGE: 

Women of eighteen years of age or over and minors of either 
sex under the age of eighteen years. 

3. ADMINISTRATIVE BODY CHARGED WITH ENFORCEMENT: 

The Workmen's Compensation Bureau, composed of the Com- 
missioner of Agriculture and Labor, the Insurance Commission- 
er, and three Workmen's Compensation Commissioners. 

4. SPECIFIC PROVISIONS OF THE ACT PROVIDING FOR MINIMUM WAGES: 

The said Bureau is authorized and empowered to ascertain 
and declare the following things: 

"Standards of minimum wages for women in any oc- 
cupation in the State and what wages are inadequate 
to supply the necessary cost of living to any such 
women workers and to maintain them in good health; 

"Standard of minimum wages for minors in any oc- 
cupation within the State of North Dakota and what 
wages are unreasonably low for any such minor workers," 

No t e : The Bureau is empowered to grant to women physically 
defective by age or otherwise, or to an apprentice or learn- 
er in such occupations in which a minimum wage has heen 
established, a special license authorizing the employment 
of such persons at a wage less than the minimum wage, 

5. CONSTITUTIONAL BASIS: 

No reported case has been found in which the validity of 
this Act was determined in North-western Telephone Exchange 
Company v. Workmen's Compensation Bureau and Steam Laundry 
Coiitoany v. Workmen's Compensation Bureau (Sup. Ct. N.D. 
1921), 182 N„W. 269. 

These xases were presented to this Court on apoeal from an 
order in each granting a temporary restraining order. The 

9713 



- 112 - 

complaints (.'id not challenge the validity'' of the Vforhraen's 
Compensation Act, which is chapter 17*-, Session Laws of 
1919. The: r challenged the validity, regularity, and reason- 
ableness 3 of certain orders and proceedings of the Iliniraum 
7i"a " e Department )f the Compensation 3ureau, ant charge that 
such orders, or some if then., are violative of th e Pourteenth 
Amendment to the federal Constitution, 

In the lower Court the plaintiffs applied 1 hr temporary 
restraining orders. She restrainin orders were ."ranted. 
The plaintiffs were ordered to execute bones which the 
trial Court thought sufficient for the protection of em- 
ployees interested or which might become interested. Pre- 
caution -was also tahen be provide for additional bonds in 
ease necessity should require. It a.p'oea; s that the plain- 
tiffs die. execute these bonds. 

This Court ,in affirmi ig the rulings of the lower Court said: 

: ' "The only real question presented in this appeal is: 

Did the lover Court abuse it: oiscretion in continuing 
in force the temporary restraining orders, until the 
final disposition of the cases upon their -;erits in the 
trial Court? This question, in all the circumstances 
of these cases, we are certain, must be answered in 
the ne "live." 

Apparentlj , the validity of the Act was sustained in the 
lower Court on the ground that it was a legitimate legis- 
lative e::ercise of the p;lice power. However, since the 
decision of Adhins v. Children's Hospital, :'S1 ~ T .S. 525; 
Liurphy v. Sardcll, 2 >9 '.S. '30; and Donham et al. v. 
7. r est~Pelson !Ian.ufactui"inr Company, .'375 ' T .^. fi.57, so' much 
of this. Act as relates to minimum wa ; es for women would 
not be held to cone within the protection of the State 
Police Department, on tie .round that the relation of wages 
to the health and morals of women is too remote. 



9715 



-113- 

S TATE OF OHIO 
I. Public Works (Acts 1131, Section 17~3 to 17-6 of Code of 19321 " 

A. Extent of occupation and industry covered. 

Contracts for construction of public improvements. Meaning 
any construction, reconstruction-, improvement , enlargement,, 
or repair of any public improvement. Public improvement 
meaning all buildings, roads, streets, alleys, sewers, 
ditches, sewer disposal plants, water works, and all other 
structures or works constructed by the State of Ohio or any 
political sub-division. 

B. Specific statutory reference to sex. 
None. 

C. Special provisions of legislation. 

"Locality" means the county wherein the physical work is 
being done. 

Public authority authorized to contract for public improve- 
ment may, before advertising for bids, fi:: the fair rate of 
wages to employees in various branches or classes of work 
which shall be not less than the prevailing rate in the lo- 
cality -herein physical work is performed. 

P. Constitutional Basis (to bo inserted later) 



9713 



-114- 

S TATE OF OHIO 

I. UINILIUI.I WAGE 1£U EOR PRIVATE INDUSTRIES: 

A. THE LAW: Session laws 1933, -q?. 502-510. 

1. OCCUPATIONAL AND INDUSTRIAL COVERAGE: 

An Industry., trade, or business, or "branch thereof, or 
class therein in which women and minors arc gainfully 
employer" , "but shall not include domestic service in the 
hone of the employer or labor on a farm. 

2. SEX AilD AfiE COVERAGE: 

All females 21 years of age and over, and minors of 
either se.; under 21 years of age. 

3. AD: il PI STRAT I YE POLY IN POTTER TO ADMINISTER THE LAW: 

"Wage Board" to "be set up by "superintendent": the word 
"superintendent" meaning the superintendent or any deputy 
or assistant superintendent of the minimum wage division 
as a separate department of industrial relations. The 
Wage Board composed of not more than 3 representatives of 
employers in any occupation, an equal numoer of repre- 
sentatives of employees in such occupation, and not more 
than 3 disinterested persons representing the public. 

The Board is given the power and duty to investigate 
and ascertain the wages of women and minors employed in 
any occupation. To differentiate and classify employment 
according to the nature of the service rendered and rf- 
comend minimum fair wage varying with locality. To re- 
commend a suitable scale of rates for learners and app- 
rentices which may "be less than the regular fair wage 
rate. To issue to a - T oman or a minor including a learner 
or an apprentice, a state license where earning capacity 
is impaired by age or physical or mental deficiency or by 
injury, such wage may "be less than the minimum fair wage 
rate and for such period of time as shall he fixed, all to 
he stated in the licenses. On its own motion or after con- 
ferring ruth superintendent or on petition of 50 or more 
residents, either while the minimum wage order is directory 
or mandatory to reconvene the Wage Board or shall appoint 
a new one for consideration of modification of minimum 
wage; after notice of 15 days a public hearing. To put in- 
to effect such subsequent established wage. 

k. SPECIFIC PROVISION PROVIDING POR I.IIITILIUU WAGE: 

A Pair Wage "shall mean a wage fairly and reasonably 
commensurate with the value of the service or class of 

9713 



-115- 

service rendered. 

"It is hereby declared to "be against public policy for 
any employer to employ any -roman or minor in an occ- 
upation in this State at an oppressive or unreasonable 
wage ..., and any contract, agreement or understanding 
for or in relation to such employment shall "be null and 



5. CONSTITUTIONAL 3ASIS: 

ITo case has ''oeen found in which the validity of this Act 
has "been determined. The definition of "fair wage", as 
set forth, distinguishes it from the Act of Congress 
which was held inviolate in the case of Adlrins against 
Children's Hospital , 26l U. S. 525. In that case the 
Court pointed out that the minimum wage provided that an 
Act of Congress did not necessarily have a relation to 
the capacity of the employee. It was this objection 
which the Legislature attempted to avoid by defining 
"fair rrage" which -ras made the minimum wage to uomen 
fairly and reasonably commensurate with the value of 
this service or class of service rendered. 

It is possible that this Act could also be dis- 
tinguished from the Act involved in the Adhins case 
on the ground that it applies to exceptional or emer- 
gency circumstances such as mentioned in that case. 



)713 



-116- 

STATS OF OKEGOU 

I. Public Works (Acts 1333, Ch. 357. 

A. Extent of occupation and industry covered. 

Note:- Act relates to creation of State Power Commission. 

"All labor employed by the Commission, directly or indirectly." 

3. Specific reference to sex. 
None . 

C. Special provisions of legislation. 

"The minimum scale of '.ages to be paid by the Commission and/or 
by any contractor or sub-contractor for the Commission shall 
be not less than the prevailing wage for the kind of work in 
the same trade in the locality where the work is being done; 
provided that where no prevailing wage exists in said locality, 
then the prevailing wage shall be that of the nearest locality 
where such prevailing wage has been established for that kind 
of work. This minimum scale shall be fixed by the Commission 
prior to the notice and call for bids on work to be contracted." 

D. Constitutional Basis (to be inserted later) 



3713 



-117- 
STATE 01 OREGON 

II. MINIMUl 7QGE La".? FOR PRIVATE INDUSTRIES: 

A - THE LAW: Session Laws of 1913, Chapter 62, Pages 92-99. 

1. OCCUPATIONAL AND INDUSTRIAL COVERAGE: 

Any occupation in which women or minors are employed. 
Occupation includes any and every vocation, -oursuit, 
trade and industry. 

2. SEX AND AGE COVERAGE: 

Women of 18 years of age or over and minors of either 
sex under the age of 18 years. 

3. ADMINISTRATIVE BODY CHARGED WITH ENFORCEMENT: 

The National Welfare Commission, composed of 5 members 
appointed by the Governor. The Commission is given the 
duty and power: 

1. Full power and authority to investigate 
and ascertain the wages of women and minors 
in the different occupations in which they 
are employed. 

2. To ascertain and declare, in the manner 
provided, the standards of minimum wages for 
women in any occupation and what wages are 
inadequate to supply the necessary cost of 
living to any women. in any occupation to main- 
tain them in good health, and to ascertain and 
determine the standards of minimum wages for 
minors in any occupation and what wages for 
such minors are unreasonably low. 

4. SPECIFIC PROVISION OF THE STATUTE WHICH PROVIDES 
FOR MINIMUM WAGES: 

Note: The Commission is empowered to grant 

to women physically defective or crip- 
pled by age, or otherwise, a special 
license authorizing their employment 
in any occupation in which only a 
minimum time-rate wage has been estab- 
lished at a wage less than such minimum 
time-rate. 

The Conference is authorized when it 
appears proper to recommend suitable 
minimum wages for learners or appren- 
tices, and the maximum length of time 
that any woman worker may be kept at 
such wage below the minimum, as a 
learner or an apprentice. 

9713 



' ■■■ 



-118- 



"It shall br unlawful to enploy women 
or minors in any occupation * * * for 
■■'ages which are inadequate to supply 
the necessary cost of living and to 
maintain them in health; and it shall 
h unlav/ful to enploy minors in zny 
occupation * * * for unreasonably low 
•■'ages. " 

CLiTSTITUTICiJAL BASIS: 

In Stettler V ' Hara et al Industrial Welfare Commission 
(Suprene Court of Oregon, 1914) 139 P. 743 an action was 
Drought to vacate and annul an order of the Industrial 
Welfare Commission of the State of Oregon and enjoin its 
enforcement from a decree for defendants plaintiff appeal- 
ed. Affirmed. 

It was shown that after proceeding in accordance with the 
act the commission made .an order which provided that no 
person owning or operating any manufacturing establishment 
in the City of Portland should employ any woman in that 
establishment for more than nine hours a day or employ any 
experienced adult woman worker at a weekly wage of less 
than $8.64, any lesser amount was declared to be inadequ- 
ate to supply the necessary cost of living to such woman 
factory worker and maintain her in health. A demurrer 
was made to the complaint. This raised the issue whether 
or not the complaint stated facts which showed that the 
acts complained of were within the reasonable exercise 
of the police power of the State. 

The purpose of this suit was to have determined whether 
the act was in violation of either the Fourteenth 
Amendment of the Federal Constitution or Section 20, 
Article 1 of the Oregon Constitution. The Court said 
there had been seme utterances "oy the Court of last 
report that it is such an inhibition. 

The Court in reviewing some of the grounds upon which 
the maximum 10-hour laws for women had been upheld 
pointed out that it was ceded by all students tnat 
woman's physical structure and her position in the 
economy of the race renders her incapable of competing 
with man either in strength or endurance. The Court 
after reviewing the case of I.iuller V Oregon 208 U.S. 412 
and other cases said: 



-iiy- 

" These are some of the grounds upnn 
which maximum ten-hour laws are sus- 
tained, and we have cited them here 
as applying with equal force to sus- 
tain the women's minimum wage law, 
and as "bringing it within the police 
power of the Legislature. The State 
should be as zealous of the morals 
of its citizens as of their health. 
The 'whereas clause' quoted above is 
a statement of the facts or conclu- 
sions constituting the necessity for 
the enactment, and the act proceeds 
to make provision to remedy these 
causes, 'Common belief and 'common 
knowledge are sufficient to make it 
palpable a.nd beyond doubt that the 
employment of female labor as it has 
been conducted is highly detrimental 
to public morals, and has a strong 
tendency to corrupt them. 
Elizabeth Beardsley Butler, in her 
•Women of the Trades', says: 'Yet 
the fact remains that, for the vast 
bulk of sales girls, the wages paid 
are not sufficient for self-support, 
and, where girls do not 'nave families 
to fall back on, some go under- 
nourished, some sell themselves. And 
the store employment which offers 
them this two-horned dilemna is re- 
plete with opportunities ,r hich in 
gradual, easy, attractive ways beckon 
to the second choice; a situation 
which a. few employers not only seem 
to tolerate, but to encourage,' * * * 
Every argument put forward to sustain 
the maximum hours law, or upon which 
it was established, applies equally 
in favor of the constitutionality of 
the minimum wage law as also within 
the police power of the state and as 
a regulation tending to guard the 

public morals and the public health. 
* * * i ii 

This case was affirmed by a divided court in 
Stettler v. O'Hara, 243 U. S. 269. 



9713 



-120- 

STATE OF PEFi'iSYLVAHIA 

I. Public Works: (Act 1931 - Act ITo . 144- - Amends Code 1929) 

A. Extent of occupation and industry covered. 

Contracts by Commonwealth for contraction, alteration, or 
repair if any public work. 

B. Specific reference to sex. 
None 

C. Special provisions of legislation. 

Such wages as shall be the established and current rate of 

wages paid by employers or organized labor in doing similar work. 

D. Constitutional Basis (to be inserted later) 



9713 



-121- 

Pucrto Rico 

I. Public Works (Act 1923, Sec. 1, as amended 1925) 

A. Extent of occupation and industry covered. 
Al 1 pub lie wo rks . 

B. Specific statutory reference to sex. 
Hone . 

C. Special provisions of legislation, 

laborers, workmen or mechanics shall receive not less than 
•^1.00 for each legal day's work performed. 

D. Constitutional Basis (to be inserted later) 



9713 



STATE Off SOUTH DAKQ IEA, 
I. MINIMUM WAGS LAW FOR PRIVATE IHDUSTaiSS 

A. ThE LAW : Secretary of Agriculture. Compiled laws, 1929, 
sec. 1022-A-1022-Z; session laws, 1931, chs. 173, 174. 

1. OCCU PATIONAL AI iU IKDUSThlAL C0 T r EI&GE: 

Occupations in any factory, workshop, mechanical or nercantile 
establishment , laundry, hotel, restaurant, or packing house in 
'Mich '-omen or girls over 14 years of age are employed. 

2. SEX .hhD AGE C0V E3AC-3: 
Females over 14 years of age, 

3. ADhLhlSTPATPy E jjO SY III POWHR ^ ADi IhlSTPH THE LAW : 
The Secretary of Agriculture. 

4. SPECIFIC PROVISION PROVIDING FOR I inihUk WAGE: 

"Ho woman or girl over the age of 14 years shall he employed 
or permitted to work in any factory, workshop, mechanical or 
mercantile establishment, laundry, hotel, restaurant, or 
packing house, at less than a living wage o;f $12.00 per 
vreek, or a proportionate amount for periods of employment 
of less than a reek." 

It also provided that any oman or girl over 14 years of 
age who receives less than minimum wages shall be entitled 
to recover in civil action full amount and costs notwith- 
standing any agreement. 

5. CONSTITUTIONAL BASIS : 

ho case has been found in vrhich the validity of this Act 
has been determined. The definition of "fair 'rage, 11 as 
set forth, distinguishes it fro;: the Act of Congress which 
"as held invoilato in the case of Adkf.i s against 
Children's Hospital , 261 U.S. 525. In that case the Court 
pointed out that the minimum wage provided that an Act of 
Congress did not necessarily have a relation to the 
capacity of the employee. It was this objection which the 
Legislature attempted to avoid by defining "fair wage" which 
was made the minimum wage to women fairly and reasonably com- 
mensurate v/ith the value of this service or class of ser- 
vice rendered. 

It is possible that this Act could also be distin- 
guished from the Act involved in the Adhins case on the 
ground that it applies to exceptional or emergency circum- 
stances such as mentioned in that case, 

9713 



-12: - 



STATU 0? TEXAS 

Public TJorks (Act 1931, ch. 46; Act 1233, ch.4-5) 

A. Extent of Occupation and Industry covered. 

State Highways. (Act 1931) 

All work for State, county, city, town, district or sub- 
division. (Act 1833) 

B. Specific statutory reference to Sex. 

:.Tone. (Act. 1931) 
r. "one. (Act. 1233) 

C. Special Provisions of Legislation. 

(Act 1931) All persons employed for manual labor onhigh- 
T? ys not less than '6Qnp per hour. 

(Act 1233) "Not less than the general prevailing rate of 

r diem wages for work of a similar character in the 
locality in which the work is performed, and not less than 
the ;eneral prevailing per diem wages for legal holidays 
and overtime work, shall be paid to all laborers, workmen; ' 
and mechanics employed by or en "behalf of the State of Texas, 
or by or on behalf of any county, city and county, city, 
town, district, or other political sub-division of s tate 
engaged in the construction of public works, exclusive of 
maintenance work. Laborers, workmen and mechanics employed 
by contractors o r s ut- contractors in the execution of any 
contract for public works with the State or any officer or 
public body thereof, or with any county, city, and county, 
ana county, city, town, district, or any sub-division or 
officer thereof. 

D. Constitutional 3asis 



971C 



-124- 

5TATB OF UTAH 

I. Public 17 orks (Acts 1933, ch. 39, s^c. 1) 

A. Extent of occupation and induct ry covered. 

AH lp'oorers, workmen,- and mechanics employed "by or on 
"behalf of the State of Utah or county, city and county, 
city, torn, district or other p olitical sub-division thereof, 
an ,r." e.l in Fublic TJorks exclusive of maintenance. 

I. Specific Statutory r eference to sex. 

Hone . 

C. Special provisions of Legislation. 

"Hot less than the general prevailing rate of vrages per hour 
for orh of- similar character in the 1 ocali ty .. i n wh ich the 
•-for?': is performed, and not less than the genoral^rovctiling 
to of v;:-es per hovir for legal holidays end. overtime". 

D. Co:-_n-:;i.t fcional Basis 



-125- 

3 TAT" OP UTAH 

II. i.JNIMJlvi WAGE LAW TOP: P IVATE INDUSTRIES: 
A. THE LAW : Session lavs 1933, cli. 3S. 

1. OCCUPATIONAL AID IPP T ~3 r 'dIAL CCTEEA&E: 

The various occupations, trades and industries in which 
women and minors are employed. 

2. SEX AND AG-E COVERAGE: 

Women and minors of either sex under 21 years of age. 

3. ADklNISTRATIVE >30DY II? POT/SR TO ADMINISTER THE LAW: 

Th I.. dus trial Commission ana a Wa, e Eoard contaisting 
of tm equal number of representatives of cimlo"crs and 
employees in tin-: occupation, trade or industry in question 
and a representative of th Commission. 

■--. SPECIFIC PROVISION PPOYIEIP'- POP. IvlIUIidUM WAGE. 

After ■ atblic hearing, on its own motion or upon a 
petiti a the 17a i Eoard is given power to fix a minimum 
wa, e bo be paid women and minors engaged in any occupation, 
trade or inc lg .• : Ln the State, which shall "be net less 
than a wa ■ ad quate to s\v Iv such women and minors the 
nee jssary cost of proper living and to maintain the health 
ana w lfare jf such women anc 1 minors. 

Any employee receiving less than the legal minimum wa e 
shall be entitled to recover ir. civil action full amount 
and costs lor the unpaid balance. 

5. CONSTITUTIONAL BASIS: 

No case has been found in which the validity of this 
law was determined. No constitutional basis is stated in 
the Act but the sane is an attempt to exercise the State 
■oolice -lower. 



Req. No. 0713 



-126- 

state of v;ashingtoii 

Public Works (Act 1931, Sec. 8> 

A. Extent of occupation and industry covered. 

Any work for oublic utility district of local utility district 
within any nubile utilitv district. 

B. Specific statutory reference to sex. 

Hone . 

C. Special provisions of legislation. 

"Every contractor and sub-contractor performing anv work for 
public utility district or local utility district within said 
•oublic utility district shall oav or cause to be oaid to its 
employees on such work or under such contract or sub-contract 
net less than minimum scale fixed bv the resolution of the 
commission orior to the notice and call for bids." 

D. Constitutional Basis (to be inserted later) 



9713 



-127- 

STATE OP tfASHII T GTO!~ 

I. IJIlIII.iUii UAGE LAW EOH PRIVATE IIJDU3 TRIES : 

A. TEE LAV/: Session Laws of 1913, Chapter 174, 
Pages 603-603. 

1. OCCUPATIONAL AI t E INDUSTRIAL COVERAGE: 

Occupations, trades, and industries, in which 
women and minors are employed. 

2. SEX AIID xiGE COVERAGE: 

Women of 18 errs of age or over and minors 
of either sex under the a e of 18 years. 

3. ADMIi'ISTHATIVE BODY CEARGED WITH ElVORCEIIEIIT: 

The Industrial Welfare Comnission composed of 
8 members. The Commission is given the duty 
and power : 

1. To ascertain the wages of v,orncn 
and minors in the various occupations, 
trades, or industries, in which they 
are employed. 

2. To establish such standards of 
wages for women and minors as shall 
be held to be reasonable and not 
detrimental to health and morals, 
and which shall be sufficient for 
the decent maintenance of women. 

Tote: Ihe Commission is empowered 



to _,rant to a woman physically de- 
fective or cri-vilcd by age or other- 
wise, or to an apprentice in an oc- 
cuu£.tion which usually requires to 
be learned oy an apor entice, a 
special license authorizing their 
employment at a wage less than the 
minimum rat-; set for such occupation. 
The wa_ e of such license is to be 
fixed by the Commission and the dura- 
tion oi time for which such wa L .e shall 
be paid shall be decided by it. 

SPECIE PROVISION OF TEE STATUTE Y/hICK PROVIDES 
FOR MINIJlJIi WAGES: 

"Section 2.* * * and it shall be 
unlawful to enrol oy women workers in 



9713 



-128- 

any industry within the State 
of Washington at v/ages which are 
not adequate for their main- 
tenance. " . 

CO: T STIIUTIOITAL BASIS: 

The following cases have been determined under 
the Act providing for minimum wages: 
Lars en V F.ice (Sun. Ct . T.'ash. 1913) 171 Pac. 
1037. In 1 13 the legislature passed an act 
relating to the enrol oyment of women and minors 
and making it unlawful to employ women in any 
industry at wages inadequate for their main- 
tenance. The act also orovides for the creation 
of a commission which shall have power to fix 
reasonable standards of wages which shall he 
sufficient for the decent maintenance of women. 
The- act empowers the Commission through an 
advisory conference to investigate conditions 
of labor in any occupation in which women were 
employed together with wages paid and to establish 
by an obligatory order a minimum wage to be paid 
for such labor. Acting under the statute, the 
Commission appointed in pursuance thereof, after 
investigation in the manner provided entered an 
obligatory order fixing ^10.00 per week as the 
minimum salary for women in office employment. 
Subsequent to the time when this order became 
effective the appellant engaged the r espondent 
in office employment at a salary of about $3.00 
a week. This action was brought by respondent to re- 
cover the difference between the wage rate paid 
and the sum she conceived herself entitled to 
under the statute and order. In the answer 
the appellant set up an affirmative defense 
which raised the question of the constitutionality 
of the act. A demurrer was sustained to this 
defense. 

This court in sustaining the ruling of the 
lower court said: 

"The first question is the constitu- 
tionality of the act. On this ques- 
tion we do not feel disposed to enter 
into an extended discussion. The 
. State of Oregon has a law upon its 
statute books almost the exact counter- 
part of our own, and its constitutionality 
was sustained by the unanimous decision of 
the highest court of that state sitting 
en banc, against attacks based upon the 
several grounds urged by the appellants 



9713 



-129- 

here. Stettler " r . O'Hara , 69 Cr. 
519,. 139 Pac. 745, I.R.A. 1917C, 
944, Ann. Gas. 1916A, 217; Simpson 

V C'Ikra , 70 Cr. 261, 141 Pac. 158. 
These cases were taken, by writ of 
error on the federal question involved, 
to the United States Supreme Court, 
and there were affirmed, after a 
reargument, although by an equally 
divided court, Mr. Justice Brandeis 
talcing no part in the consideration 
and decision of the cases. Stetoler 

V ' Kara and Simoson V O'Hara 243 U.S. 
629, 57 Sup, Gt. 475, 61 L. Ed. 937. 
The reasoning of the justices of the 
Oregon court in writing the decisions 
in the cases anneals to us as sound and 
conclusive, and we are content to rest 
our judgment on the authority of the 
cases as there determined." 

Snokanc Hotel Company V Younger ' e t al (Sun. 
Ct. wash. 1920) 194 Pac. 595. This was an 
appeal from an order of the lower court 
dismissing an action to restrain the en- 
forcement of an order of the Industrial 
Welfare Commission by which all employers 
of females, over 18 year, of age, in the 
housekeeping industry were required to 
pay a minimum wage of 518.00 per week. 
The appellants ar^uc that the statute 
(Chanter 174 of the Session Laws of 
Washington 1913) unaer which the Com- 
mission acted is unconstitutional. They 
do not attack the act on the ground that 
it is not within the police ;-ov/er, but 
they contend that it is void because it 
makes no provision for notice to persons 
affected by the act and for that reason 
void. The court in affirming the decision 
of the lower court said: 

"In short, the legislature, in- 
stead of fixing the minimum wa b e 
and the conditions of labor for 
women and minors as it would clear- 
ly have the right to without any 
notice whatever to persons affected 
thereby, has authorized a commission 
to examine into and determine the 
facts upon which the act may become 
operative. This, we are satisfied, 
may be done without any notice, un- 
less notice is required by the act 



9713 



-130- 



governing the commission, lie are 
of the opinion that employers have no vested 
right to employ women or minors, and there- 
fore are not entitled to notice as a matter 
of right. The legislature in the exercise 
of its police power may take away whatever 
rights the employer has in that respect. 

Sharks V Moritz (Sup. Ct. of Wash. 1926) 
251 Pac. 583. This was an appeal on the 
findings of fact, conclusions of law, and 
judgement, and without any appearance or 
argument on behalf of respondent. The 
action was by an adult women for the balance 
of compensation which she claimed for the 
operation of an elevator during part-time 
employment. Computed on a basis of a 
48-hour week and a minimum weekly wage 
fixed by statute there was due an unpaid 
balance of $171.65. The answer and cross- 
complaint set forth that under the agreement 
respondent was privileged to devote a part 
of her time to her personal duties and that 
she did absent herself from the elevator 
during the alleged hours of employment 
about four-fifths of that time. 

Appellant contended that the minimum wage 
statute was in violation of section 3, 
Article I and section 12, Article I, of 
the state constitution and in violation 
of the Fifth and Fourteenth Amendments 
to the Federal Constitution in that the 
minimum wage law violates the guaranty 
of liberty of contract and of equal pro- 
tection under the law. This court in its 
opinion said: 

"Among other things, as conclusions 
of law, the trial court concluded 
that chapter 174, laws of 1.913, is 
unconstitutional and invalid, under 
the decision of the Supreme Court 
of the United States in Adkins et al 

V Children's Hospital of the District 
of Columbia, 261 U. S. 525, 45 S. Ct. 
394, 67 L. 3d. 785, 24 A. L. 2. 1238, 
insofar as respondent is concerned, but 
that, nevertheless, it was the duty of 
the trial court to follow the decision 
of this court in the case of Lars en 

V Rice , 100 Wash. 642, 171 P. 1037, 
wherein it was held that the statute 



-131- 



above mentioned is constitutional 
and valid. 

"Regardless of the decision of the 
United States Supreme Court in the 
A; kins Ca.se , supra, which ['irobably has 
the effect of overruling this court in 
Lars en V" Bice , supra, respondent was 
not entitled to recover for another 
reason. Her eniployment was not such 
employment as came within the provisions 
of the minimum wage law, and order. Ncither 
the law nor the order of the industrial 
welfare committee required the payment 
of the weekly minimum when the employee 
does not devote her time to the earning- 
of a living wage, but in connection with 
another calling, or with no calling, works 
a few hours per day, or a few hours per 
week, or renders intermittent service. The 
statute does not apnly to such a situation. 
I. dllor Tele. hone Co . V . Minimum Wage Commission 
(1920) 145 Minn. 262, 177 IT. W. 341," 

The law was recently held invalid in the following order: 

"COURT OF THE STATS OF WASHINGTON III A1JD FOR CHELAN COUNTY 

ERNEST PARRICH AND ELSIE 
PARRISK, his wife 



Plaintiffs, 



vs 



ITo. 12215 



WEST COAST HOTEL COMPANY, 
A Corporation. 



JUDGEMENT AND DECREE 



Defendants. 



IT IS HERE AND NOW CONSIDERED AND ORDERED tnat the minimum 
wage act, Chapter 174, Laws of 1913, and the Acts of the Industrial 
Welfare Commission, so far as it attempts to fix the scale of 
wages for adult women, is in violation of the Constitutional rights 
of this department guaranteed it under Amendment 5, and Section 1, 
of Amendment 14 of the Constitution of the United States. 

Done in open Court this 9th day of November, 1935. 

V7. 0. Parr, Judge." 



9713 



-132- 



STATE 0? i/ISCC "SI. 



I. Public Acres (Act 1931, Chap. 269; let' 1931, Chap. 433; 
Act 1931, Chap. 441 \ 

A. Extent of occupation and industry covered. 

Contracts for: 
(Chapter S69 , > construction, remodeling Public Building 
(Chanter 432) Hi hwny. 

(Chapter 441) Co missioners of Metropolitan Sewerage 
Commission. 

3. Specific Statutory reference to Sex. 

None . 

C. Special provisions of Legislation. 

(Chapter 269 ^ - Sach contract etc. etc. no Laborer, workman or 
mechanic shall be paid less than the prevailing wage rate in 
the "same or most si nil r trade or occupation in the comity 
wherein such public building is situated. Prevailing wage 
rate in any trade or occupation shall be the rate paid to a 
majority of all persons employed in such trade or occupation in 
such count;', or if no rate, then the rate paid to the 1 rgest 
number in the county for "/ork in such trade or occupation. 

(Chapter 432) - "JTo laborer or employee ... shall not be paid 

let 3 rate of wages than the prevailing n te of wages in the 

county where the work is to be done, as set forth in the con- 
tract. 

The Industrial Commission shall annur lly determine the prevail- 
ing wage rate for common labor and for such other classes as 
the highway commission may deem advisable. 

(Chanter 441 ) - The commissioners of the Metropolitan Sewerage 
Commission shall establish a minimum wage scale not less than 
the prevailing ware paid to similar employees of the county and 
municipalities. 

D. Constitutional Basis (to be inserted later ^ 



971;: 



-133- 

STATE OF WISCONSIN 

MINIIUI" WAGE LAW FOR P7.IVATE INDUSTRIES: 

A. THE LAW: Statutes 1931, Sections 20.57, 101.02, 104.01- 
104.12. 

1. OCCUPATIONAL AND INDUSTRIAL COVERAGE: 

Any occupation wherein there is compensation for labor 
measured by time, piece or otherwise. 

Every wage paid or agreed to be paid by any employer 
to any female or minor empolyee . 

2. SEX AUD COVERAGE: 

All females and minors. 

3. ADMINISTRATIVE BODY CHARGED WITH ENFORCEMENT: 

The Industrial Commission. (Commission is composed of 
3 members appointed by the Governor with the advice and 
consent of the Senate.) The Commission is empowered to 
investigate, ascertain, determine and fix reasonable 
classifications and determine living wages. The Commis- 
sion may also make rules and regulations whereby any fe- 
male or minor unable to earn a. living wage determined 
upon shall be granted a license to work for a wage which 
shall be commensurate with his or her ability. 

4. SPECIFIC PROVISION PROVIDING HIITIMDT WAGE: 
Ever-"- w?ge shall be not less than a living wage. 

5. CONSTITUTIONAL BASIS: 

The original Act was passed in 1913. It was amended 
in 1931. No case has been found in which the validity 
of the amendment was judicially determined. The valid- 
ity of the original Act was determined in the following 
case in 1933; 

Folding Faniture Works V. Industrial Commission 
of Wisconsin (D. Ct. W.D.Wis., 1923) 300 Fed. 991. 
The hearing in this case was oefore three judges and 
their decision was in a percurim opinion. It was set 
forth tha.t plaintiff was doing business in Wisconsin 
and within the scope and operation of the Wisconsin 
Minimum Wa^e Law (St. Wis. 1923, c. 104). The Constitu- 
tionality of this act was attacked on the ground that it 
determined and fixed the minimum wages for adult women. It was 
also set forth that a minimum wage of 25 cents per hour had 
been fixed by defendant and that he was able to employ 



9713 



-134- 

STAT3 OF WISCOIISIH (Cont'd) 

adult women for less than that amount hut to do so it 
would he suhjected to repeated criminal prosecution. 

The court held that the constitutionality of the Act 
rested entirely upon the application of the decision in 
Adkins V. Children's Hospital , 261 U.S. 525. The 
court could not find any vital or substantial differ- 
ence between the cases. On this basis an injunction 
order against the defendants so far as the stature 
affected adult women was issued. 



2713# 



OFFICE OF THE NATIONAL RECOVERY ADMINISTRATION 
THE DIVISION OF REVIEW 

THE WORK OF THE DIVISION OF REVIEW 

Executive Order No. 7075, dated June 15, 1935, established the Division of Review of the 
National Recovery Administration. The pertinent part of the Executive Order reads thus: 

The Division of Review shall assemble, analyze, and report upon the statistical 
information and records of experience of the operations of the various trades and 
industries heretofore subject to codes of fair competition, shall study the ef- 
fects of such codes upon trade, industrial and labor conditions in general, and 
ot.ier related matters, sha'l make available for the protection and promotion of 
the public interest an adequate review of the effects of the Administration of 
Title I of the National Inc. istrial Recovery Act, and ti j principles and policies 
put into effect thereunder, and shall otherwise aid the D resident in carrying out 
nis functions under the said Title. 

The study sections set up in the Division of Review covered these areas: industry 
studies, foreign trade studies, labor studies, trade practice studies, statistical studies, 
legal studies, administration studies, miscellaneous studies, and the writing of code his- 
tories. The materials which were produced by these secticns are indicated below. 

Except for the Code Histories, all items mentioned below are scheduled to be in mimeo- 
graphed form by April 1, 1936. 

THE CODE HISTORIES 

The Code Histories are documented accounts of the formation and administration of the 
codes. They contain the definition of the industry and the principal products thereof; the 
classes of members in the industry; the history of cede formation including an account of the 
sp ;ns ring organizations, the conferences, negotiations and hearings which were ,ield, and 
the activities in connection with obtaining approval of the code; the history of the ad- 
ministration of the code, covering the organization and operation of the code authority, 
the difficulties encountered in administration, the extent of compliance or non-compliance, 
and the general success or lack of success of the code; and an analysis of the operation of 
code provisions dealing with wages, hours, trade practices, and other provisions. These 
and other matters are canvassed not only in terms of the materials to be found in the files, 
but also in terms of the experiences of the deputies and others concerned with code formation 
and administration. 

The Code Histories, (including histories of certain NRA units or agencies) are not 
mimeographed. They are to be turned over to the Department of Commerce in typewritten form. 
All told, approximately eight hundred and fifty (850) histories will be completed. This 
number includes all of the approved codes and some of the unapproved codes. (In Work Mate - 
rials No 18 . Contents of Code H istorie s, will be found the outline which governed the 
preparation of Code Histories.) 

(In the case of all approved codes and also in the case of some codes not carried to 
final approval, there are in NRA files further materials on industries. Particularly worthy 
of mention are the Volumes I, II and III which c nstitute the material officially submitted 
to the President in support of the recommendation for approval of each code. These volumes 
9675—1. 



set forth the origination of the code, the sponsoring group, the evidence advanced to sup- 
port the proposal, the report of the Division of Research and Planning on the industry, the 
recommendations of the various Advisory Boards, certain types of official correspondence, 
the transcript of the formal hearing, and other pertinent matter. There is also much offi- 
cial information relating to amendments, interpretations, exemptions, and other rulings. The 
materials mentioned in this paragraph were of course not a part of the work of the Division 
of Review. ) 

THE PORK MATERIALS SERIES 

In the work of the Division of Review a considerable number of studies and compilations 
of data (other than those noted below in the Evidence Studies Series and the Statistical 
Materials Series) have been made. These are listed below, grouped according to the char- 
acter of the material. (In JTork Mat erials No. 12, Te ntative Outlines and Summari es of 
S tudies in Process , these materials are fully described) . 

Industry S tudies 

Automobile Industry, An Economic Survey of 

Bituminous Coal Industry under Free Competition and Code Regulation, Economic Survey of 

Construction Industry and NRA Construction Codes, the 

Electrical Manufacturing Industry, The 

Fertilizer Industry, The 

Fishery Industry and the Fishery Codes 

Fishermen and Fishing Craft, Earnings of 

Foreign Trade under the National Industrial Recovery Act 

Part A - Competitive Position of the United States in International Trade 1927-29 through 

1934. 
Part B - Section 3 (e) of NIRA and its administration. 
Part C - Imports and Importing under NRA Codes. 
Part D - Exports and Exporting under NRA Codes. 

Forest Products Industries, Foreign Trade Study of the 

Iron and Steel Industry, The 

Knitting Industries, The 
Leather and Shoe Industries, The 

Lumber and Timber Products Industry, Economic Problems of the 
Men's Clothing Industry, The 
Millinery Industry, The 
Motion Picture Industry, The 

Migration of Industry, The: The Shift of Twenty-Five Needle Trades From New York State, 
1926 to 1934 

National Income, A study of. 
Paper Industry, The 

Production, Prices, Employment and Payrolls in Industry, Agriculture and Railway Trans- 
portation, January 1923, to date 
Retail Trades Study, The 
Rubber Industry Study, The 
Statistical Background of NRA 

Textile Industry in the United Kingdom, France, Germany, Italy, and Japan 
Textile Yarns and Fabrics 
Tobacco Industry, The 
Wholesale Trades Study, The 
9675. 



- iii - 

Women's Apparel Industry, Some Aspects of the 

Trade P ractic e Studies 

Commodities, Information Concerning: A Study of NRA and Related Experiences in Control 
Distribution, Manufacturers' Control of: A Study of Trade Practice Provisions in Selected 

NRA Codes 
Design Piracy: The Problem and Its Treatment Under NRA Codes 
Electrical Mfg. Industry: Price Filing Study 
Fertilizer Industry: Price Filing Study 

Geographical Price Relations Under Codes of Fair Competition, Control of 
Minimum Price Regulation Under Codes of Fair Competition 
Multiple Basing Point System in the Lime Industry: Operation of the 
Price Control in the Coffee Industry 
Price Filing Under NRA Codes 

Production Control Under NRA Codes, Some Aspects of. 
Resale Price Maintenance Legislation in the United States 

Retail Price Cutting, Restriction of, with special Emphasis on The Drug Industry. 
Trade Practice Rules of The Federal Trade Commission (1914-1936): A classification for 

comparison with Trade Practice Provisions of NRA Codes. 

Labo r Studi es 

Employment, Payrolls, Hours, and Wages in 115 Selected Code Industries 1933-1935 

Hours and Wages in American Industry 

Labor Program Under the National Industrial Recovery Act, The 

Part A. Introduction 

Part B. Control of Hours and Reemployment 

Part C. Control of Wages 

Part D. Control of Other Conditions of Employment 

Part E. Section 7(a) of the Recovery Act 
PRA Census of Employment, June, October, 1933 
Puerto Rico Needlework, Homeworkers Survey 

Administrativ e Studies 

Administrative and Legal Aspects of Stays, Exemptions and Exceptions, Code Amendments, Con- 
ditional Orders of Approval 

Administrative Interpretations of NRA Codes 

Administrative Law and Procedure under the NIRA 

Agreements Under Sections 4(a) and 7(b) of the NIRA 

Approved Codes in Industry Groups, Classification of 

Basic Code, the — (Administrative Order X-61) 

Code Authorities and Their Part in the Administration of the NIRA 
Part A. Introduction 

Part B. Nature, Composition and Organization of Code Authorities 
Part C. Activities of the Code Authorities 
Part D. Code Authority Finances 
Part C. Summary and Evaluation 

9675. 



- iv - 

Code Compliance Activities of the NRA 

Code Making Program of the NRA in the Territories, The 

Code Provisions and Related Subjects, Policy Statements Concerning 

Content of NIRA Administrative Legislation 

Part A. Executive and Administrative Orders 

Part B. Labor Provisions in the Codes 

Part C. Trade Practice Provisions in the Codes 

Part D. Administrative Provisions in the Codes 

Part E. Agreements under Sections 4{a) and 7(b) 

Part F. A Type Case: The Cotton Textile Code 
Labels Under NRA, A Study of 

Model Code and Model Provisions for Codes, Development of 
National Recovery Administration, The: A Review and Evaluation of its Organization and 

Activities 
NRA Insignia 

President's Reemployment Agreement, The 

President's Reemployment Agreement, Substitutions in Connection with the 
Prison Labor Problem under NRA and the Prison Compact, The 
Problems of Administration in the Overlapping of Code Definitions of Industries and Trades, 

Multiple Code Coverage, Classifying Individual Members of Industries and Trades 
Relationship ;f NRA to Government Contracts and Contracts Involving the Use of Government 

Funds 
Relationship of NRA with other Federal Agencies 
Relationship of NRA with States and Muncipalities 
Sheltered Workshops Under NRA 
Uncodified Industries: A Study of Factors Limiting the Code Making Program 

Legal Studies 

Anti-Trust Laws and Unfair Competition 

Collective Bargaining Agreements, the Right of Individual Employees to Enforce Provisions of 

o amerce Clause, Possible Federal Regulation of the Employer-Employee Relationship Under the 

Delegation of Power, Certain Phases of the Principle of, with Reference to Federal Industrial 
Regulatory Legislation 

Enforcement, Extra-Judicial Methods of 

Federal Regulation through the Joint Employment of the Power of Taxation aid the Spending 
Power 

Government Contract Provisions as a Means of Establishing Proper Econ mic Standards, Legal 
Memorandum on Possibility of 

Intrastate Activities Which so Affect Interstate Commerce as to Bring them Under the Com- 
merce Clause, Cases on 

Legislative Possibilities of the State Constitutions 

Post Office and Post Road Power — Can it be Used as a Means of Federal Industrial Regula- 
tion? 

State Recovery Legislation in Aid of Federal Recovery Legislation History and Analysis 

Tariff Rates to Secure Proper Standards of Wages and Hours, the Possibility of Variation in 

irade Practices and the Anti-Trust Laws 

Treaty Making Power of the United States 

War Power, Can it be Used as a Means of Federal Regulation of Child Labor? 

9675. 



- V - 

THE EV IDENCE STUDIES SERIES 

The Evidence Studies were originally undertaken to gather material for pending court 
cases. After the Schechter decision the project was continued in order to assemble data for 
use in connection with the studies of the Division of Review. The data are particularly 
concerned with the nature, size and operations of the industry; and with the relation of th6 
industry to interstate commerce. The industries covered by the Evidence Studies account for 
more than one-half of the total number of workers under codes. The list of these studies 
follows: 



Automobile Manufacturing Industry 
Automotive Parts and Equipment Industry 
Baking Industry 

Boot and Shoe Manufacturing Industry 
Bottled Soft Drink Industry 
Builders' Supplies Industry 
Canning Industry 
Chemical Manufacturing Industry 
Cigar Manufacturing Industry 
Coat and Suit Industry 
Construction Industry 
Cotton Garment Industry 
Dress Manufacturing Industry- 
Electrical Contracting Industry 
Electrical Manufacturing Industry 
Fabricated Metal Products Mfg. Industry and 
Metal Finishing and Metal Coating Industry 
Fishery Industry 
Furniture Manufacturing Industry 
General Contractors Industry 
General Contractors Industry 
Graphic Arts Industry 
Graphic Arts Industry 
Gray Iron Foundry Industry 
Hosiery Industry 

Infant's and Children's Wear Industry 
Iron and Steel Industry 



Leather Industry 

Lu^-er and Timber Products Industry 
Mason Contractors Industry 
Men's Clothing Industry 
Motion Picture Industry 
Motor Vehicle Retailing Trade 
Needlework Industry of Puerto Rico 
painting and Paperhanging Industry 
Photo Engraving Industry 
Plumbing Contracting Industry 
Retail Lumber Industry 
Retail Trade Industry 

Retail Tire and Battery Trade Industry 
Rubber Manufacturing Industry 
Rubber Tire Manufacturing Industry 
Shipbuilding Industry 
Silk Textile Industry 
Structural Clay Products Industry 
Throwing Industry 
Trucking Industry 
Waste Materials Industry 
Wholesale and Retail Food Industry 
Waste Materials Industry 
Wholesale and Retail Food Industry 
Wholesale Fresh Fruit and vegetable Indus- 
try 
Wool Textile Industry 



THE STATISTICAL MATERIALS SERIES 



This series is supplementary to the Evidence Ctudies Series. The reports include data 
on establishments, firms, employment, payrolls, wages, hours, production capacities, ship- 
ments, sales, consumption, stocks, prices, material costs, failures, exports and imports. 
They also include notes on the principal qualificat.ons that should be observed in using the 
data, the technical methods employed, and the applicability of the material to the study of 
the industries concerned. The following numbers appear in the series : 
9675. 



- vi - 



Asphalt Shingle and Roofing Industry 

Business Furniture 

Candy Manufacturing Industry 

Carpet and Rug Industry 

Cement Industry 

Cleaning and Dyeing Trade 

Coffee Industry 

Copper and Srass Mill Products Industry 

Cotton Textile Industry 

Electrical Manufacturing Industry 

9675. 



Fertilizer Industry 

Funeral Supply Industry 

Glass Container Industry 

Ice Manufacturing Industry 

Knitted Outerwear Industry 

Paint, Varnish, and Lacquer, Mfg. Industry 

Plumbing Fixtures Industry 

Ray;n and Synthetic Yarn Producing Industry 

Salt Producing Industry