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THE UNITED STATES

In the several States of the American Union a mass of labor legislation has developed similar to the legislation in England growing out of the Factory Acts. It is necessary to refer to only a few of these acts, such as Employers' Liability, Workingmen's Compensation, and Ten and Eight Hour Laws, to recall to the mind of the reader a great many police regulations directly affecting the relations between the employer and the employed. The United States have moved more cautiously in the direction of social legislation than have England and Australasia. We have been so imbued with the individualistic philosophy that we have permitted the lower stratum of laborers to degenerate into virtual serfs, rather than interfere with the individual's liberty to sell his labor in the market of his own choice, and on his own terms. Society has been criminally negligent in refusing to prevent, earlier, this economic exploitation of these helpless classes. However, the State and Federal police powers are now being invoked for their protection, and this is one of the most hopeful tendencies in American politics today. Under authority of this dynamic power, all our liberal social legislation, looking to the alleviation of the burden of want, is justified. In the United States the step from regulation of the hours and the conditions of labor to the regulation of the rate of wages has been made peculiarly difficult by virtue of the combined opposition of labor unions, who have almost unanimously opposed a legal minimum wage for men, and legalists, who hold that the step is not constitutional. The organized workers have insisted from the beginning upon establishing their own minimum wage scale through organized effort; but they have favored a legal minimum wage for women and minors, since these are not effectively organized, and can, therefore, be easily exploited.1 Furthermore, it has been generally conceded that the constitutional case against a minimum wage law for women would not be so strong as it would be if men were included. In fact, the Supreme Court of Oregon, in upholding the minimum wage law of that State, hinted that

1 Official Report of the Executive Council of the American Federation of Labor to the thirty-third annual convention, 1913. Andrews, Minimum Wage Legislation, p. 82.

Stettler v. O'Hara, 69 Ore. 519; 139 Pac. 793 (1914).

a similar law for men might not be upheld. The result has been that of the eleven States that have adopted minimum wage laws not one has included men.

The eleven States are: Massachusetts, Oregon, California, Colorado, Minnesota, Utah, Washington, Nebraska, Wisconsin, Kansas and Arkansas.

These states have not evaded the constitutional difficulties, however, by excluding adult males from the operation of their laws. The right of Oregon to enforce her act was immediately contested in the now famous case of Stettler v. O'Hara.1 As the Supreme Court of the State upheld the law as a proper exercise of the State's police power, an appeal was taken by the appellant to the Supreme Court of the United States. The case was argued before that court in December, 1914, and the country is awaiting the decision with a great deal of interest. In Minnesota constitutional objections have successfully blocked the enforcement of the law. On November 23, 1914, Judge Catlin of the Ramsey County District Court declared the act unconstitutional on the grounds that it violated the Fourteenth Amendment to the Federal Constitution and delegated legislative power to the Minimum Wage Commission. The case is now before the Supreme Court of the State.

1 Stettler v. O'Hara, 69_Ore. 519; 139 Pac. 793 (1914).

2 Ramer Co. v. Evans, District Court, Second Judicial District.

CHAPTER II.

CONSTITUTIONAL ASPECTS OF MINIMUM WAGE LEGISLATION IN THE

UNITED STATES

The principal constitutional objections urged to a minimum wage law are: first, it violates the Fourteenth Amendment to the Federal Constitution in that it denies to citizens the right to freedom of contract, it takes property without due process of law and without compensation, and it is not uniform in its operation, and hence is class legislation; secondly, it delegates legislative power to an appointive commission.

The answers to these objections are: first, that the regulation of wages is properly within the police power of a State, and that since the Fourteenth Amendment does not impair or interfere with a State's police power,' minimum wage legislation cannot come into conflict with that Amendment; secondly, since the Minimum Wage Commission in no case has discretionary power to make the law, but only to determine when the facts or contingencies, upon which the action of the act is made to depend, exist, such commission does not exercise delegated legislative powers.

THE POLICE POWER

The activities of a government, whatever its form, logically fall under five heads: foreign, military, judicial, financial, and internal affairs. Most important of these is the department of internal affairs, considered from the point of view of the modern conception of a state; and chief among the sovereign powers relied upon by the state for the performance of the duties of this department, is the so-called police power. This power cannot be specifically defined as it is an exceedingly dynamic power growing to fit the social need. The courts have wrestled with

1 Slaughter House Case, 16 Wallace, 97.

it, but all they have been able to do, beyond giving a very general definition, has been to determine whether or not the matter under consideration in each specific case considered has been a proper exercise of the police power. They have, as intimated, repeatedly defined it in broad and general terms. The Supreme Court of the United States has said: "It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage as held by the prevailing morality or strong preponderant opinion to be greatly and immediately necessary to the public welfare." Professor Tucker defines it thus: "Police power is the name given to the inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy, in a broad sense, demands for the benefit of society at large, regulations to guard its morals, safety, health, order or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires."

3

According to Professor Ernst Freund, the police power is one of the inherent functions of government; the restraining and compelling power of the government which is exercised for the protection and the furtherance of the public welfare, or the internal public policy. He classifies the interests embraced under the public welfare under three heads: first, the primary social interests of safety, order and morals; secondly, the economic interests; and thirdly, the non-material or ideal and political interests. Of these three spheres of activities, conditions and activ interests, the first is conceded to fall within the police power, the second is debatable, and the third exempt. If, then, minimum wage legislation can be brought within the first or second of these spheres of the internal public policy, such legislation clearly falls within the police power, being enacted in the interest of the public welfare.

Health and Safety: In all well ordered States the power and the duty of the government to take all proper and needful measures for the protection of the public health is no longèr seriously questioned; and, as the whole is no greater and no better than the sum of all its parts, it is clear that the health of the individual is affected with a public interest from which the

1 Nobel State Bank v. Haskell, 219 U. S., 104.

28 Cyc. 863, quoted by the Oregon Supreme Court in its opinion in Stettler v. O'Hara, delivered March 17, 1914, and upholding the Oregon minimum wage law.

3 Freund, Ernst, "The Police Power."

individual cannot even voluntarily dissociate himself.1 In the interest of the public health, the State has come more and more to interfere in the relations between the employer and the employee, even to the extent of protecting the individual worker against himself. The employer is required to take proper precautions for the safety and health of his employees; and, on the other hand, the employee is not allowed to labor in certain dangerous or responsible employments more than a prescribed number of hours each day. The public health is to be guarded with jealous care, and to this end the protection of the State shall extend even to the generations yet unborn. If, as Professor Freund says, a community may justly assume, under the police power, the guardianship of the health of the unborn generations by forbidding the marriage of persons of near kin, of inebriates, and of persons afflicted with diseases that are likely to affect their progeny, why should not such protection also forbid the maintenance of economic conditions that are seriously impairing the health of whole classes of laborers, and making them wholly unfit for parenthood? Low wages, in the first place, undermine the health of a very considerable number of female workers of the present generation. An insufficient wage means cheap and insufficient food and clothing, unsanitary lodgings, little if any recreation, and little or no medical aid however necessary it may be. Ill health is the inevitable result, and ill health leads to inefficiency, and inefficiency to still lower wages; and so these unfortunate women go the weary rounds of this vicious circle whose final stages too often are some public institution and a pauper's grave. And the mischief does not end here, no, not even with death, for the sins of society are visited upon posterity. Low wages, therefore, in the second place, affect the health of the next generation, for the health of the race is conditioned upon the preservation of the health of our potential mothers, the toilers of today but the mothers of tomorrow. Following are a few representative conclusions of social workers in different parts of the country.

“The wages paid to women workers in most occupations are miserably inadequate to meet the cost of living at the lowest

1 Holden v. Hardy, 169 U. S., 397..

2 As American minimum wage legislation applies only to women and minors, the discussion is confined primarily to women workers.

See also Louis D. Brandeis' Appendix to the Briefs Filed on Behalf of the Respondents in the Case of Stettler v. O'Hara, in the Supreme Court of Oregon, p. 5-40.

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