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and Wealth,"-to find a statement so bald as his own, one must go back in economic literature to the Mercantilist Era. Even the sternest of the classical economists would scarcely commit himself to the doctrine that the sale of human labor is not to be differentiated in any way from the sale of goods.

For the past quarter of a century and more legislatures have been denying this theory, with protective legislation such as Workmen's Compensation Acts, statutes requiring payment of labor to be made in cash, statutes stipulating the time in which wages must be paid, the conditions under which labor can be performed, the hours during which labor can be sold, the number of hours in one day for which labor may endure, and a multitude of similar laws. Indeed several of the statutes which went to the Supreme Court for review and were there approved as valid expressions of the police power, are referred to by Mr. Justice Sutherland in his opinion.*

Would the learned justice be prepared to defend similar legislation relating to the sale of commodi

4 McLean v. Arkansas, (1908) 211 U. S. 539, 53 L. Ed. 315, 29 Sup. Ct. Rep. 206; Knoxville Iron Co. v. Harbison (1901) 183 U. S. 13, 46 L. Ed. 55, 22 Sup. Ct. Rep. 1; Erie Ry. Co. v. Williams (1914) 233 U. S. 685, 58 L. Ed. 1155, 34 Sup. Ct. Rep. 761; Holden v. Hardy, (1898) 169 U. S. 366, 42 L. Ed. 780, 18 Sup. Ct. Rep. 383; Bunting v. Oregon, (1917) 243 U. S. 426, 61 L. Ed. 830, 37 Sup. Ct. Rep. 435; Muller v. Oregon, supra, n. 3; Riley v. Mass. (1914) 232 U. S. 671, 58 L. Ed. 788, 34 Sup. Ct. Rep. 469; Miller v. Wilson (1915) 236 U. S. 373, 59 L. Ed. 628, 35 Sup. Ct. Rep. 342; Bosley v. McLaughlin (1915) 236 U. S. 385, 59 L. Ed. 632, 35 Sup. Ct. Rep. 345.

ties? An example would be a law duplicating the Tennessee statute at issue and upheld in Knoxville Iron Co. v. Harbison," but relating to goods and not to labor. Such a law might read that it would be unlawful for any one purchasing plows to pay for those plows in store orders, in merchandise or other substitutes for cash. Would he be prepared to hold as valid legislation an enactment that it would be unlawful for any one purchasing merchandise to pay for said merchandise later than the fifteenth day of the month, contracts to the contrary being declared unlawful and invalid (a duplication of the statute relating to the payment of labor upheld in the case of Erie Ry. Co. v. Williams)? It is to be doubted. Yet if there be no differences between the selling of labor and the selling of goods, why should it be proper so to limit the making of contracts in regard to the selling of labor and not be equally proper so to limit the making of contracts for the sale of goods?

Obviously there is a difference. Human labor is not a mere commodity to be bartered and sold. It is of the essence of human life itself. And because the conditions relating to the sale of labor, the performance of labor and the mode of payment of labor, have important social results expressed in terms of social well being or ill being, the liberty of contract in regard to the sale of labor has been

5 Supra, n. 4.

• Supra, n. 4.

repeatedly interfered with by legislative enactment in the valid exercise of the police power and as such sustained by the highest courts of the land.

Finally, having propounded economic doctrine both startlingly new and shockingly old, the writer of the opinion of the Court enters the field hitherto left to the clergy, the police power and God-the field of morals. Not content with rejecting as invalid the moral basis of minimum-wage legislation, Mr. Justice Sutherland proceeds to lay down for us the "real moral requirement implicit in every contract of employment." With what may appear to be courage born of innocence, he gravely indicates the impossible of ascertainment. For the moral requirement enjoined by the Justice is in brief that the amount paid for labor should be exactly the "worth of the labor performed." Simple indeed! And would the learned Justice furnish the scale for ascertaining and measuring what this "worth" might be! The range of opinion swings all the way from that of the Marxian socialist who maintains that the whole product and nothing less is the "worth"-the true equivalent of the laborer's toil, through that of the modern economist, who boldly admits that the laborer's services are "worth" whatever he can by his bargaining wring from his employer, through that of the living wage advocate, who maintains that they are worth sufficient to insure decent and comfortable living (and whose reasoning the Court in this case specifically rejects), to that of the most

hard-fisted of employers, who maintains that in hard times they are worth nothing and in good as little as he can possibly pay.

The modern Diogenes in his search for an honest man comes to the conclusion that the answer lies in one's point of view as to honesty. Similarly, the inquirer as to the "worth" of the laborer's toil finds as many answers as there are economic theories. To dismiss minimum-wage legislation as impracticable and in the same breath airily to direct one to determine the "worth" of the laborer's services, has elements of charming naïveté.

Finally one's sense of logic may be somewhat wrenched by what must appear to many to be the familiar non sequitur of elementary logic. Mr. Justice Sutherland maintains that the power to fix a minimum wage connotes of necessity the power to fix a maximum and so is a dangerous precedent. The mere fact that minimum wages for women may be prescribed in the interests of preventing destitution and pauperism, surely makes no case for the maximum wage whose function is entirely unrelated. The reasons for the two types of wage fixing are so divergent as inevitably to find their justification, if such there be, in very different sources.

In conclusion it may be stated, that it will strain even the agility of the legal technician to harmonize the tone of this decision with the unbroken line of cases involving social legislation which have been handed down by the Supreme Court in Muller v.

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Oregon on through Ripley v. Massachusetts, Miller v. Wilson, Bosley v. McLaughlin,1o Wilson v. New," Bunting v. Oregon,12 Block v. Hirsch,13 and Marcus Brown Holding Co. v. Feldman." And it might be recommended that the constituents of this majority opinion glance over some of the earlier statements of the Supreme Court itself, as for example the pertinent remark in McLean v. Arkansas,1 to wit: "The mere fact that a court may differ with the legislature in its views of public policy or that the judge may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power."

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This decision differs in its significance from that of others in which statutes have been declared unconstitutional. Disregarding the Lochner case as overruled sub silentio, as suggested in the dissenting opinions of this case, this presents the first instance in which important and widely approved social legis

7 Supra, n. 4.

8 Supra, n. 4.

9 Supra, n. 4.

10 Supra, n. 4.

11 (1917) 243 U. S. 332, 61 L. Ed. 755, 37 Sup. Ct. Rep. 298. 12 Supra, n. 4.

13 (1921) 256 U. S. 135, 65 L. Ed. 865, 41

14 (1921) 256 U. S. 170, 65 L. Ed. 877, 41

15 Supra, n. 4.

Sup. Ct. Rep. 458.
Sup. Ct. Rep. 465.

16 Lochner v. N. Y. (1905) 198 U. S. 45, 49 L. Ed. 937, 25 Sup. Ct. Rep. 539.

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