THE JUDICIALITY OF MINIMUM WAGE LEGISLATION THOMAS REED POWELL Harvard Law Review MINIMUM-WAGE LEGISLATION has been of two main kinds. One is the Massachusetts variety which vests a commission with power to make inquiries and publish results.1 Employers are exposed to public knowledge of the wages paid and are thereby subjected to public censure or public praise. Sentiments of decency or of vanity may move the niggardly to mend their ways, but the recalcitrant are left free to bargain as they can and will. The other type of legislation adds physical to moral force. A commission is authorized to discover and to declare the minimum cost of decent subsistence and on this basis to prescribe the minimum wage that may be paid to women and minors. Employment at less than the prescribed wage subjects the employer to punishment. While the variations in the wages fixed by various boards for various employments indicate that the cost of liv 1 This is described in Holcombe v. Creamer, 231 Mass. 99, 120 N. E. 354 (1918). ing is not always the sole criterion of the boards' determinations, there has been no judicial adjudication that their prescriptions have exceeded the cost of decent living. The constitutional issue raised by such compulsory legislation is therefore whether an employer may be compelled to pay the cost of maintaining the employee whose full services he voluntarily uses in the conduct of his enterprise. This constitutional question finds no answer in the Constitution. While the legislation, like substantially all legislation and all law, involves a deprivation of liberty or property, such deprivation is constitutionally innocuous unless it is "without due process of law." The Constitution does not define due process of law. The task of definition is committed to the judges. They have recognized that definition is impossible. They have told us that instead of definition they will employ a process of "judicial inclusion and exclusion," and give us the reasons.2 These reasons can not come from the Constitution. They come from the judges. The law of constitutional due process is therefore as much judge-made law as any common law is judge-made law. Until some due-process issue is authoritatively settled, one who would make a constitutional prophecy or a constitutional argument should be familiar with the outlook and the temper of the judges by whom the issue is to be decided. In cases of any considerable novelty, 2 Mr. Justice Miller, in Davidson v. New Orleans, 96 U. S. 97, 104 (1877). few reasons can be so compelling as to meet with universal acceptation. The determination of closelycontroverted constitutional issues depends, therefore, in large part upon the composition of the court of last resort at the particular time when the issue comes before it. 3 Nowhere does this analysis find firmer confirmation than in the history of judicial decisions on the constitutionality of minimum-wage legislation. The question first came before the Oregon court in 1914, and in two decisions seven judges declared themselves in favor of the legislation and none was opposed. The Oregon case went to the Supreme Court of the United States, and in 1917 the decree of the state court was sustained by a vote of four to four. Mr. Justice Brandeis, having been of counsel, did not sit. His general outlook on what is called social legislation is so well known that there can be no doubt that, had he not been of counsel, he would have voted in favor of the law. In that event, the consequent five-to-four vote almost certainly would have established the constitutionality of such legislation 3 Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914); Simpson v. O'Hara, 70 Ore. 261, 141 Pac. 158 (1914). Stettler v. O'Hara, 243 U. S. 629 (1917). This case was first argued in the Supreme Court on December 16 and 17, 1914. It was restored to the docket for reargument on June 12, 1916, reargued January 18 and 19, 1917, and decided on April 9, 1917. The per curiam opinion reads as follows: "Judgments affirmed with costs by an equally divided court. (Mr. Justice Brandeis took no part in the consideration and decision of these cases.)" against subsequent attack in the federal courts. Though conceivably a favorable decision might later have been overruled by a differently composed Supreme Court, the experience is that police issues of this general character are finally settled by such favorable decision. A four-to-four vote, however, settles nothing, except that the particular decision below is not reversed. After this tie vote, the constitutional issue still remained an open one. A prophet 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 legislation. 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. Four changes in the Supreme Court had taken place before the issue again came before it. 5 In the meantime four other courts had passed upon the question. Two decisions of the Minnesota Supreme Court in 1917 and 1920 record six judges in favor of the legislation and none opposed. An Arkansas decision of 1917° sustained the legislation by a vote of four to one, though one of the majority refrained from dissent only because he thought that 5 Williams v. Evans, 139 Minn. 32, 165 N. W. 495 (1917); Miller Telephone Co. v. Minimum Wage Commission, 145 Minn. 262, 177 N. W. 341 (1920). • State v. Crowe, 130 Ark. 273, 197 S. W. 4 (1917). the legislation was entitled to the benefit of the Supreme Court tie until it was broken. Two decisions of the Supreme Court of Washington in 1918 and 1920 add eleven judges to those in favor of the legislation and none to those opposed." Thus the compulsory minimum-wage legislation of the states of Oregon, Minnesota, Arkansas, and Washington was thought constitutional by twenty-seven judges of the courts of those states and unconstitutional by only two judges, three of the four courts being unanimously in favor of the statutes. 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 hearing Mr. Justice Robb was unable 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 Robb, who had now recovered, wrote the Chief Justice that he 8 7 Larsen v. Rice, 100 Wash. 642, 171 Pac. 1037 (1918); Spokane Hotel Co. v. Younger, 113 Wash. 359, 194 Pac. 595 (1920). 8 This fact and the recital which follows in the text are found in the dissenting opinion of Chief Justice Smyth in the decision after the rehearing, cited in note 9, infra. |