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
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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
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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
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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
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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
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(*) 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 _iiage)
-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 tTrpes 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)
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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 rees 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 (lr,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
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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 Connally 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
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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)
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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.
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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>^ea 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 (**-**). Tiie Puerto Rico lav/ was again
sustained in 1921 in the case of People 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.W0 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)
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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 wasted1 .
"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 Holden v. Hardy, 169 U. ".i. 366, it was applied to miners
and rested on the unfavorable environment of employment in
mining and smelting. In Lochner 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 "oi7 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 Bunting 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 silentio. 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 Brander1 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, no1" 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 op 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 o1' 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 Coe 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
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Ir. 1933 spurred by the econonic depression which caused in-
creased interest in social legislation a renewed impetus rra.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, "Tew
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, hoveTrer 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 wel1 -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 nafure 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 negotiation1 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 Tational Consumers' League to
meet the objections which a "iajority of the Supreme Court
found against the District of Columbia, law in Ad1-: 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 "bTr 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 pov'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. TheT,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 usee5 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 lorer 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
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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 Wilson 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.
9713
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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 peoples1 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.
9713
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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)
9713
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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
9713
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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 - "Occupation11 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) ma1' 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
9713
• -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
9713
-42-
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.
Section 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
9713
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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
9713
-45-
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.
9713
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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
CȴAG-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 Building 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
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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 performed1 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
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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
Children ' 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.
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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 Per ^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.
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h. CONSTITUTIONAL I3ASIS:
In State 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
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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 Children'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 . Wage 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
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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,rater 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. ***In 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. In 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
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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 . Peculations 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 Provisions
1i\e prevailing rate of wages.
D» Typical Provisions
"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 Statutory Provisions
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
9713
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-lersonal riglfc&s of others1'.
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,
g713 Children's Hospital, 261 U. S. 525.
-67-
STATE OF CONNECTICUT
I . Public Works
A. INDUSTRIES COVERED
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 PROVISIONS
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.
9713
-69t-
STATE OP CONNECTICUT
ii. minimum wags laws n: private industries
A. THE 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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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.
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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
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-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 and the Amendments of 1933 are confusing
and ambiguous.
9713
-74-
District 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 :
Provided, 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
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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
Sr'A?S OF FLORIDA
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
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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
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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, Section 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 Provision
Idaho Cede 1952, Section 43-701
Current rate per diem wage.
Acts 1933 Chapter 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 Provisions
Idaho Code 45-701. referring to section 43-701 states as
9713
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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."
Chapter 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
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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
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•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.
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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 wace, 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<Ta.:^e Provision
The current rate of per diem wafee.
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 sr>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 laborers and other persons at a less wa^e than the current
rate of per diem wa^e in the locality where said work 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 erounds : 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
wau.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 bein0 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 wabes", 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
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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)
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STATZ 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
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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
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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-
STATE 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
-or1:.
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 vrgenl 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
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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 Adkins case said:
"It is o'f special significance that in the Adkins
erro«., wi+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 is9 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.
fj7'
-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-
ableness3 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 the Pourteenth
Amendment to the federal Constitution,
In the lower Court the plaintiffs applied 1hr 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.rest~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
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STATE 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
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STATE 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 -Toman 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
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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
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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
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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 0 ' 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 ,rhich 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 DAKQIEA,
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. OCCUPATIONAL AIiU IKDUSThlAL C0TrEI&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 C0VE3AC-3:
Females over 14 years of age,
3. ADhLhlSTPATPyE jjOSY III POWHR ^0 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.is 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 IPPT~3r'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 anc1 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 tfASHIITGTO!~
I. IJIlIII.iUii UAGE LAW EOH PRIVATE IIJDU3 TRIES :
A. TEE LAV/: Session Laws of 1913, Chapter 174,
Pages 603-603.
1. OCCUPATIONAL AItE 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 a0e 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 waL.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:TSTIIUTIOITAL 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 0 ' 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 ' et 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 wabe
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 Dresident 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 Histories, 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 Materials No. 12, Tentative Outlines and Summaries of
Studies in Process, these materials are fully described) .
Industry Studies
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 Practice 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.
Labor Studies
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
Administrative 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.
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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.
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THE EVIDENCE 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