the scope of the legislative power in matters of public health, safety, or morals, said: We must assume that when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled of necessity to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective if not the best known way in which to meet and suppress the evils of a smallpox epidemic that imperilled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature had done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. But a case more nearly analagous to the case under discussion is Bunting v. Oregon. There was here involved the constitutionality of a law limiting the working day of employees in “mills, factories, and manufacturing establishments" to ten hours. In holding the law constitutional, the court said: But we need not cast about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise or be convinced of the wisdom of its exercise. . . . It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives perhaps evasion too much play, is lighter in its penalties than it might be, is no impeachment of its legality. This may be a blemish, giving opportunity for criticism and difference in characterization, but the constitutional validity of legislation cannot be determined by the degree of exactness of its provisions or remedies. New policies are usually tentative in their beginnings, advance in firmness as they advance in acceptance. They do not at a particular moment of time spring full perfect in extent or means from the legislative brain. Time may be necessary to fashion them to precedent customs and conditions and as they justify themselves or otherwise they pass from militancy to triumph or from question to repeal.' 6 (1917) 243 U. S. 426, 61 L. Ed. 830, Ann. Cas. 1918A 1043. 7 Ibid., 437, 438. The same doctrine is stated very forcibly by Mr. Justice Harlan in his dissent to Lochner v. New York in the following language: 8 I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health, and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the state, and to provide for those dependent upon them. And by Mr. Justice Holmes in his dissent in the same case as follows: It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamen8 (1905) 198 U. S. 45, 72. tally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. . . . I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work." In applying the theory set forth in the above cited decisions to the minimum wage case, it would seem fair to say that if it is not unreasonable for one to believe that a prescription of minimum wages has a beneficial effect on morals and health it would follow that Congress has power to enact a minimum wage law. 9 (1905) 198 U. S. 45, 72. CONSTITUTIONAL LAW: POLICE POWER: MINIMUM WAGE FOR WOMEN BARBARA N. GRIMES California Law Review 1 In the case of Adkins v. Children's Hospital 1 in an opinion rendered by a divided court, the Supreme Court of the United States held unconstitutional, as violative of the due process clause of the Fifth Amendment, the Minimum Wage Law of the District of Columbia. This law enacted for the District of Columbia by the Congress of the United States provided for the fixing of minimum wages for women in any occupation in the District of Columbia through the medium of an administrative board. The board's function was to investigate conditions, hold conferences with representatives of employers and employees and set the legal minimum wage, which should be sufficient to maintain the workers' good health and to protect their morals. Violation of the 1 (April 9, 1923) 261 U. S. 525, 67 L. Ed. 440, 43 Sup. Ct. Rep. 394. |