Skip to main content

Full text of "Work materials ..."

See other formats


BOSTON  PUBLIC  LIBRARY 


3  9999  063 


7  367  6 


OFFICE  OF  NATIONAL  RECOVERY  ADMINISTRATION 
DIVISION  OF  REVIEW 


LEGAL  ASPECTS  OF  LABOR  PROBLEMS  —  MINIMUM  WAGES 

By 

Melvin  Sims 


WORK  MATERIALS  NO.  43 


February.  1936 


02FIC3  0?  NATIONAL  RECOVERY  ADMINISTRATION 
DIVISION  OP  REVIEW 


LEGAL  ASPECTS  OP  LA30R  PROBLEMS  ~  LUNIL'UM  WAGES 

By 
Melvii;  Sims 


Februaiy,  1936 
9713 


FOREWORD 

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

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

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

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


L.  C.  liar  shall 
Director,  Division  of  Review 


February  27,  19GR 


9713  -i- 


TABLE  OF   CONTENTS 

Page 

Introduction 1 

Definitions 1 

Analysis  of  Public  Works  Wage  Laws 1 

Court  Decisions 4 

Analysis  of  Wage  Laws  in  Private  Industry 6 

Court  Decisions 8 

Private  Industry  Wage  Laws  Since  1933 24 

The  Adauson  Act 29 

Wilson  v.  Hew 29 

Re  strae 33 

App  endix. 36 

Standard  Minimum  Wage  Bill  for  Women  and  Minors 37 

Wage  Laws 

Arizona 46 

Arkansas 52 

California 56 

Colorado 63 

Connecticut 67 

Delaware 71 

District  of  Columbia 74 

Florida 30 

Idaho 82 

Illinois 84 

Kansas 86 

Kentucky 

Maine SI 

Maryland • 

Massachusetts 93 

Minne  so  ta 

Montana 

Nevada 

New  Hampshire 100 

New  Jersey 102 

New  York 105 

llorth  Dakota Ill 

Ohio 113 

Oregon 116 

Pennsylvania 120 

Puerto   Pico 121 

South  Dakota 122 

Texas 123 

Utah 124 

Washington 126 

Wisconsin 132 


3713  „ii„ 


-1- 

MINIMUM  WAGES 


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

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


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


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

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

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

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

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

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


9713 


-2- 


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


9713 


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

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

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

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

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

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

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


9713 


-4- 

While  the  state  has  the  power,  if  not  restricted  "by  con- 
stitutional limitations,  to  fix  the  wages  of  its  employees  engaged 
on  public  works  under  its  power  to  make  contracts  (*),  the  courts 
have  strictly  construed  the  state  constitutions,  holding  several  en- 
actments unconstitutional  (**).   It  has  been  held  that  states  have 
the  power  to  delegate  the  fixing  of  wages  of  emplo  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 


-5- 

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

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


9713 


-6- 

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

After  further  discussion,  the  court  said: 

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


m 


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

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


(*)  Arkansas,  Law  of  1915,  Act  191 

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

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

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

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


9713 


-7- 


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

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

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

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

4232. 

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

Hew  Hampshire,  Acts  of  1933,  Ch.  152. 

New  Jersey,  Session  Laws  1933,  Ch.  152. 

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

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

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

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

396bl8). 

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

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

South  Dakota,  Secretary  of  Acriculture.  Compiled  Laws, 

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

and  174. 

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

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

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

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

104.12. 

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


9713 


-8- 

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

Tyro  kinds  of  minimum  wage  laws  have  been  enacted.  The  Mas- 
sachusetts law  of  1921  depended  upon  public  opinion,  providing  for  in- 
vestigation of  wages  paid,  determination  of  a  fair  wage  after  a  public 
hearing,  and  publication  in  four  newspapers  in  each  county  of  the  wage 
fixed,  the  findings  on  which  it  is  based,  and  the  names  of  employers 
who  fail  or  refuse  to  accept  such  minimum  \:p>^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) 


9713 


-11- 

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

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


-24- 

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 


-34- 


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

Minimum  wage  legislation  of  a  compulsory  arbitration  nature  has 
been  upheld  for  a  temporary  period  in  a  quasi  public  industry  asperating 
on  a  franchise  -;:lien  there  was  threat  of  a  general  strike  "bc.c.;use  em/  iTers 
and  employees  could  not  agree  on  conditions  of  employment  (.****).  But 
the  Supreme  Coxirt  of  the  United  States  held  unconstitutional  the  fixing 
of  wages  on  a  permanent  basis  through  compulsory  arbitration  in  an 
industry  where  it  has  felt  that  the  public  interest  is  more  remote( *****) . 
The  obligations  of  the  franchise  considered  in  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 


-35- 


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 


-36- 


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 


-37- 

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 


-38- 

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. 


9713 


-39- 

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. 


9713 


_4i  - 
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 


-44- 

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 


-46- 

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 


-49- 

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

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

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

The  prevailing  wage  rate  law,  Chapter  72,  1935,  was  amended  in 
1935  by  adding  Sections  4  and  5  to  that  Act.   These  provisions  re- 
lated to  definitions  and  penalties.   Section  4,  Definitions,  states 
as  follows:   "The  term  'locality  in  which  the  work  is  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 


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

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

1.  OCCUPATIONAL  AHD  IHDUSTHIAL  COVERAGE: 

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

2.  see  COVERAGE: 

All  females. 

3.  SPECIEIC  PROVISIOH  OE  THE  STATUTE  PHOVIDIEG  EOE  MINIMUM 
iTAGES 

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

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


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

said: 

"The  judgment  of  the  District  Court  is 
affirmed  uoon  the  authority  of  Adkins  V 
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. 


9713 


-52- 
STATE  0?  ARKANSAS 

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

1.  OCCUPATIONAL  AND  INDUSTRIAL  COVEPACE: 

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

2.  SEX  COVEPAC-E: 
All  females. 

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

Section  f   provides  that  it  shall  "be  unlawful  for  any  em- 
ployer of  labor  to  pay  any  female  worker  in  such  an  est- 
ablishment or  occupation  less  than  $1.25  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. 


9713 


-53- 
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 


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


-57- 

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

E .  Further  Statutory  Provisions 

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

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

9713 


-58- 

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

E.  Ccnstituticnal  Basis 

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

In  the  case  of  Metropolitan  v,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 


-62- 

STATE  OF  CALIFORNIA 
II.  MINIMUM  WAGE  LAW  FOR  PRIVATE  INDUSTRIES 

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

1.  INDUSTRIES  AND  OCCUPATIONS  COVERED: 

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

2.  OCCUPATIONS  COVERED: 

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

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

3.  SPECIFIC  PROVISION  WHICH  PROVIDES  FOR  MINIMUM  WAGES: 

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

4.  CONSTITUTIONAL  BASIS: 

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


9713 


-63- 

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

I.        Public   'Tories 

A.  Industries  Covered 

Acts  of  1S33,  Chapter  124 

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

B .  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 


■65- 


-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. 


9713 


-70- 


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. 


9713 


-71- 

STATE  OP  DELAWARE 


Public  Works 

A.   INDUSTRIES  COVERED 

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

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

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

3.   OCCUPATIONS  COVERED 

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

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

C.   WAGE  PROVISIONS 

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


9713 


-72- 

D.  TYPICAL  PROVISIONS 

(Revised  Code  of  1915,  Section  U6) . 

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

(Acts  of  1933,  Chapter  172) . 

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

E.  FURTHER  PROVISIONS 

Revised  Code  1915* 

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

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

(Acts  of  1933,  Chapter  172) 

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

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


9713 


-73- 

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

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

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

CONST  I-TUT I  ORAL  PAS  I S 

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

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

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


-79- 

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

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

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

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

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


9713 


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 


-61- 


E .   Constitutional  "Basis 

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


9713 


-83- 

STATE  OF   ID_.HO 

I.      Public  Works 

A.  Industries  Covered 

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

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

city,  townshio  or  other  municipality. 
Acts  1935  Chanter  111,  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 


-83- 

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


-84- 

ST'ATE  OF  ILL  lira  IS 

I.  MINIMUM  WAGE  IAWS  FOR  PRIVATE  INDUSTRIES 

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

1.  INDUSTRIES  AND  OCCUPATIONS  COVERED: 

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

2.  SEX  AND  AGE  COVERAGE: 

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

3.  ADMINISTRATIVE  BODY  CHARGED  WITH  ENFORCEMENT: 

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

4.  SPECIFIC  PROVISIONS  WHICH  PROVIDE  FOR  MINIMUM  WAGES 

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

5.  CONSTITUTIONAL  BASIS: 

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

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


9713 


•S5- 


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


9713 


-86- 

STATE  OF  KANSAS 
I .   Public  TTorks 

ii .  Industries  Covered 

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

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

B.  Occupation"  Covered 

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

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

It  is  to  be  noted  that  in  that  section  of  the  statute  which 
requires  that  there  shell  be  a  stimulation  in  all  such  contracts 
for  the  payment  of  the  statutory  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 


-90-. 
STATE  OF  KMTOCKY 

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

A.  Extent  of  occupation  and  industry  covered. 

Public  Roads 

Manual  or  day  labor,  skilled  later,  foremen,  assistant 

engineers . 

B.  Special  Statutory  reference   to   sex. 
Hone . 

C.  Special  Provisions  of  Legislation. 

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

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

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

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

D.  Constitutional  Basis    (to  be   supplied  later) 


9713 


-91- 
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 


-92- 

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

A.  Extent  of  Occupation  and  Industry  covered. 

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

B.  Specified  Statutory  reference  to  Sex. 
Hone . 

C.  Special  provisions  of  Legislation. 

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

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

D.  Constitutional  Basis  (to  be  inserted  later). 


-93- 
STATE  OF   MASSACHUSETTS 

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

1.  OC CUP ATL~ ITS  OR  INDUSTRIES  COVERED: 

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

2.  SEX  AND  AGE  COVERAGE: 
Females  and  minors 

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

4.  CONSTITUTIONAL  3ASIS: 

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


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


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

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

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

9713 


-94- 

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

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

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

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


9713 


-95- 

STATE  0?  MINNESOTA 

MINIMUM-WAGE  LAWS   III  PRIVATE  INDUSTRIES 

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

1.  OCCUPATIONS  OE  INDUSTRIES  COVERED: 

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

2.  SEX  AND  AGE  COVERAGE: 

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

3.  ADMINISTRATIVE  BODY  EMPOWERED  TO  ADMINISTER  THE  LAW: 

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

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

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

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

5.  CONSTITUTIONAL  BASIS: 

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

9713 


-96- 

STATS  OF  MIITOZSOTA   (Cont'd) 

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

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

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

9713 


-97- 


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 


-106- 

STATE  OP  NEW  YORK 

II.   MINIMUM  WAGE  LAW  FOR  PRIVATE  INDUSTRIES: 

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

Supplement,  Chapter  32,  Labor  Law,  Article  19. 

1.  OCCUPATIONAL  AXED  INDUSTRIAL  COVERAGE: 

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

2.  SEX  AND  AGE  COVERAGE: 

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

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

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

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

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

9713 


-107- 

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

4.   SPECIFIC  PROVISION  PROVIDING  MINIMUM  WAGE: 

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

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

5.   CONSTITUTIONAL  BfcSIS: 

Section  550  sets  forth  as  follows: 

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


9713 


-108- 


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

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

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

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

The  Court  referring  to  the  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 


-113- 

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 


-114- 

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 


-115- 

service  rendered. 

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


5.   CONSTITUTIONAL  3ASIS: 

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

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


)713 


-116- 

STATS  OF  OKEGOU 

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

A.   Extent  of  occupation  and  industry  covered. 

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

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

3.   Specific  reference  to  sex. 
None . 

C.   Special  provisions  of  legislation. 

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

D.   Constitutional  Basis  (to  be  inserted  later) 


3713 


-117- 
STATE  01  OREGON 

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

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

1.  OCCUPATIONAL  AND  INDUSTRIAL  COVERAGE: 

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

2.  SEX  AND  AGE  COVERAGE: 

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

3.  ADMINISTRATIVE  BODY  CHARGED  WITH  ENFORCEMENT: 

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

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

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

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

Note:   The  Commission  is  empowered  to  grant 

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

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

9713 


'  ■■■ 


-118- 


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

CLiTSTITUTICiJAL  BASIS: 

In  Stettler  V  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. 


-  iv  - 

Code  Compliance  Activities  of  the  NRA 

Code  Making  Program  of  the  NRA  in  the  Territories,  The 

Code  Provisions  and  Related  Subjects,  Policy  Statements  Concerning 

Content  of  NIRA  Administrative  Legislation 

Part  A.  Executive  and  Administrative  Orders 

Part  B.  Labor  Provisions  in  the  Codes 

Part  C.  Trade  Practice  Provisions  in  the  Codes 

Part  D.  Administrative  Provisions  in  the  Codes 

Part  E.  Agreements  under  Sections  4{a)  and  7(b) 

Part  F.  A  Type  Case:   The  Cotton  Textile  Code 
Labels  Under  NRA,  A  Study  of 

Model  Code  and  Model  Provisions  for  Codes,  Development  of 
National  Recovery  Administration,  The:   A  Review  and  Evaluation  of  its  Organization  and 

Activities 
NRA  Insignia 

President's  Reemployment  Agreement,  The 

President's  Reemployment  Agreement,  Substitutions  in  Connection  with  the 
Prison  Labor  Problem  under  NRA  and  the  Prison  Compact,  The 
Problems  of  Administration  in  the  Overlapping  of  Code  Definitions  of  Industries  and  Trades, 

Multiple  Code  Coverage,  Classifying  Individual  Members  of  Industries  and  Trades 
Relationship  ;f  NRA  to  Government  Contracts  and  Contracts  Involving  the  Use  of  Government 

Funds 
Relationship  of  NRA  with  other  Federal  Agencies 
Relationship  of  NRA  with  States  and  Muncipalities 
Sheltered  Workshops  Under  NRA 
Uncodified  Industries:  A  Study  of  Factors  Limiting  the  Code  Making  Program 

Legal  Studies 

Anti-Trust  Laws  and  Unfair  Competition 

Collective  Bargaining  Agreements,  the  Right  of  Individual  Employees  to  Enforce  Provisions  of 

o  amerce  Clause,  Possible  Federal  Regulation  of  the  Employer-Employee  Relationship  Under  the 

Delegation  of  Power,  Certain  Phases  of  the  Principle  of,  with  Reference  to  Federal  Industrial 
Regulatory  Legislation 

Enforcement,  Extra-Judicial  Methods  of 

Federal  Regulation  through  the  Joint  Employment  of  the  Power  of  Taxation  aid  the  Spending 
Power 

Government  Contract  Provisions  as  a  Means  of  Establishing  Proper  Econ  mic  Standards,  Legal 
Memorandum  on  Possibility  of 

Intrastate  Activities  Which  so  Affect  Interstate  Commerce  as  to  Bring  them  Under  the  Com- 
merce Clause,  Cases  on 

Legislative  Possibilities  of  the  State  Constitutions 

Post  Office  and  Post  Road  Power  —  Can  it  be  Used  as  a  Means  of  Federal  Industrial  Regula- 
tion? 

State  Recovery  Legislation  in  Aid  of  Federal  Recovery  Legislation  History  and  Analysis 

Tariff  Rates  to  Secure  Proper  Standards  of  Wages  and  Hours,  the  Possibility  of  Variation  in 

irade  Practices  and  the  Anti-Trust  Laws 

Treaty  Making  Power  of  the  United  States 

War  Power,  Can  it  be  Used  as  a  Means  of  Federal  Regulation  of  Child  Labor? 

9675. 


-  V  - 

THE  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