court said in a later case: "But neither the amendment (Fourteenth)—broad and comprehensive as it is-nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate as to increase the industries of the State, develop its resources, and add to its wealth and prosperity." Again the Court has said: "No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants." Hence the legislatures, when they adopted the Fourteenth Amendment for their respective States, could not enter into a bargain that could be later construed as a surrender of the States' police power to protect the public health and morals.

Freedom of Contract. Both in the economic and the legal sense, freedom of contract is a qualified and not an absolute right. Under the present system of highly specialized division of labor there is practically no mobility of labor. A laborer is proficient only within a very narrow sphere of industry and his contractual power is limited to that narrow field. This applies to the skilled class of laborers. If we consider the class of women workers affected by a minimum wage law, we find a majority of these women living on and below the bread level, and, therefore, almost completely at the mercy of the employer who can force upon them his own schedule of wages. Furthermore, the women in industry are unorganized and cannot bargain collectively with their employers to good effect. Also the abode of many of them is practically fixed. Some haven't the means wherewith to change to another location, and others have families that they must help support. Under these conditions there can be no freedom of contract-not as long as an employer can drive a bargain by starving his employees into submission. The Supreme Court has pointed out the fallacy of the freedom of contract argument in very succinct terms. "The legislature," said the Court in Holden v. Hardy, "has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do

1 Barbier v. Connolly, 113 U. S., 31.

2 Stone v. Mississippi, 101 U. S., 816. Other cases: Mugler v. Kansas, 123 U. S., 412; Union Co. v. Landing Co., III U. S., 751; Noble State Bank v. Haskell, 219 U. S., 104; Gas Light Co. v. Light Co., 115 U. S., 650.

not stand upon equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority. . . . But the fact that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party shall be protected against himself. The State still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all its parts, and when the individual health, safety and welfare are sacrificed or neglected, the State must suffer." This case upheld a law of Utah which limited the hours of labor for men employed in underground mines, and was certainly a curtailment of the freedom of contract as understood by those who would put a strict construction on the Fourteenth Amendment. An Oregon law, forbidding a woman employed in a laundry to contract to work more than ten hours each day, was also held constitutional by the Supreme Court. The highest court of the State of Oregon said in the recent case of "Stettler v. O'Hara :" "There are many women employed at inadequate wages-employment not secured by the agreement of the worker at satisfactory compensation, but at a wage dictated by the employer. The worker in such a case has no voice in fixing the hours or wages, or choice to refuse it, but must accept it or fare worse."

In the economic sense, therefore, as pointed out in the preceding cases, there is no real freedom of contract. On the other hand, the right to contract is considerably qualified as a legal right. The Supreme Court has said on this point: "It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume

any obligations, except for the necessaries of existence; to the common carrier the power to make any contracts releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property." In another case the language of the court is especially explicit and should leave no doubt as to its meaning. "Freedom of contract," said the court, "is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses. The guarantee of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts or deny to government the power to provide restrictive safeguards. Liberty implies the safety from arbitrary restraints, not immunity from reasonable regulations and prohibitions imposed in the interest of the community." Professor Westel Woodbury Willoughby, of Johns Hopkins University, covered the whole field when he said: "A political or constitutional theory which considered the rights of the individual to life, liberty and property as wholly removed, upon their substantive side, from regulation by ordinary legislative act would, however, be destructive of efficient government, if not of political authority itself. It would predicate a régime of individualism that would scarcely be distinguished from anarchy. From this legislative impasse we have been saved by the development of the doctrine of what is known as the 'police power' of the State."

Class Legislation. It is further contended that a minimum wage law contravenes the Fourteenth Amendment to the Constitution in that it is class legislation, because the order of the Commission does not apply uniformly to all sections of the State. But, the fact that a Commission does not fix wage rates for all sections of a State at the same time is not open to a charge of discrimination within the meaning of the Fourteenth Amendment. According to this objection the operation of the law would have to be suspended for years-until the commission

1 Frisbie v. United States, 157 U. S., 165.

2 Chicago, B. & Quincy R. R. Co. v. McGuire, 219 U. S., 549.

8 The American Political Science Review, Feb. 1914. Presidential Address before the Tenth Annual Meeting of the American Political Science Association, "The Individual and the State."

had made investigations and wage determinations for every locality in the State. It has been held that a railroad commission may fix certain freight rates between certain specified points, without at the same time fixing similar rates for all the points of the State.1 The same rule should apply to wage rates.

Nor can the charge of discrimination be maintained on the ground that the rates vary in different sections of the State. A uniform State-wide schedule of wages would be the grossest of injustice. Under our present laws, every employer affected by a wage determination must pay a "living wage"; and, as the cost of living, upon which a living wage is conditioned, varies in different sections, and in different industries of the same section of a State, simple justice demands that the wage rates be graduated accordingly. The fact of a law being general and uniform is not affected by the number of persons within the scope of its operation. The Constitution does not require that a law to be uniform must operate upon every person in the State, but that it operates uniformly on each class.2

The claim of discrimination on the ground that the act applies only to employers employing women and minors is not sustained by the rulings of the courts. That children need special protection is not open to argument, and Justice Brewer, in rendering the opinion of the Court in Muller v. Oregon, said: "The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. The difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her."

1 Louisville Co. v. Garrett, 34 Sup. Ct. R., 48.

2 McAunich v. R. R. Co., 20 Iowa, 343; Chicago Co. v. Iowa, 94 U. S., 163; Barbier v. Connolly, 113 U. S., 27; State v. Muller, 48 Ore., 252. 3 208 U. S., 412.

DELEGATION OF LEGISLATIVE POWER

One of the principal reasons for holding the Minnesota minimum wage law unconstitutional was that, in the opinion of the Court, it delegates legislative power to an appointive commission. It is a familiar rule of law, based upon the theory of the separation of governmental powers, that the legislature cannot delegate any of its constitutional powers to enact laws, but that all strictly legislative functions must be exercised exclusively by the legislative branch of the government. But the defense is a flat denial of the charge that the Commission exercises delegated legislative powers within the meaning of our Federal and State Constitutions. The Commission is an administrative body carrying out the will of the legislature. It does not make the law; it merely determines, under authority of the act itself, when and where the provisions of the law, as determined by the legislature, apply. "The test and distinction," said the Indiana Supreme Court in 1900,2 "whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, 'is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.'" Justice Moore, speaking for the Supreme Court of Oregon in a case upholding the constitutionality of the State Railroad Commission Act, said. "The rule is universal that, as a legislative assembly exercises an authority conferred by the Constitution, it cannot delegate the power to enact laws. It may, however, direct that the application of a statute to a designated district or to a specified state of facts shall depend upon the existence of certain conditions to be ascertained and determined in a particular manner.' For instance, the Federal Supreme Court has held that the Congress may delegate to the Secretary of the Treasury the power to prescribe the regulations under which one of its acts shall operate, and to determine whether or not such regulations can be

113

1 Ramer Co. v. Evans, Minnesota District Court, Second Judicial Dis1914. Judge Catlin.

trict, Nov. 23Beach, 155 Ind., 121. Also, Cincinnati Co. v. Connors, 1 Ohio State, 77-83.

3 State v. Corvallis Co., 59 Ore., 450.