could have been found who would have actually earned it, there would, it is true, have been cause for saying that the employer was wrongfully deprived of his property. That contention was not made in the instant case nor did the Court rely upon such reason. The further objection that the statute was uncertain and probably failed to achieve fully its purposes should not have rendered it unconstitutional. Legislation need not at its very birth rise fully armed and perfect.28 Minimum-wage legislation is still in its experimental stage and must be given an opportunity to perfect itself.

Instead of following the policy of previous decisions culminating in Bunting v. Oregon,29 which seemed to indicate a growing liberality in allowing the police power to interfere with the freedom to contract, the Court has reverted to Lochner v. New York,30 which has always been considered an unfortunate decision and had been supposed to have

1923. For an able discussion of this objection and an answer to it, see Powell, supra in note 22.

28 Mutual Loan Co. v. Martell, supra in note 15, at p. 235, "We shall only repeat that the classification need not be scientific nor logically appropriate. . . ." Rosenthal v. New York, 226 U. S. 260, 271 (1912): "But the Federal Constitution does not require that all state laws shall be perfect, nor that the entire field of proper legislation shall be covered by a single enactment."

29 Supra in note 17. 30 Supra in note 25.

been overruled by Bunting v. Oregon. The inference must be that, as at present constituted, the Court has once more returned to the eighteenth century philosophy of the Lochner Case.

CONSTITUTIONALITY OF MINIMUM

WAGE STATUTES

NOTE

Columbia Law Review
June, 1923

1

IN the recent case of Adkins v. Children's Hospital, invalidating the District of Columbia minimum-wage law for women, the Supreme Court once more manifests its intolerance of innovation and its reluctance to countenance any liberal expansion of the police power.1 The statute in question 2 provided for a board of three members, equally representative of employers, employees, and the public, to fix minimum wages for all women and minors employed in any occupation within the District of Columbia. Preliminary to making such orders, the board was required to pursue thorough investigations, call representative conferences, and hold public hearings. The board was also empowered to 1 See (1922) 22 Columbia Law Rev. 252.

2 (1918) 40 Stat. 960, c. 174; U. S. Comp. Stat. (Supp. 1919), § 34212. The purposes of the act (§ 23) are "to protect the women and minors in the District, from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living; and the act in each of its provisions and in its entirety shall be interpreted to effectuate this purpose."

issue special licenses to women whose earning capacity had been impaired, and thus to authorize their employment at wages less than the minimum fixed by the board. Any employer paying wages less than those ordered by the board would be guilty of a misdemeanor. The suits testing the act squarely raised the question of Congress' power to establish, through appropriate legislation, a minimum wage for adult women. The Supreme Court, Chief Justice Taft (with whom Mr. Justice Sanford concurred) and Mr. Justice Holmes dissenting, adjudged the law void as violative of the Fifth Amendment.

3

Halting as the Supreme Court had been in its approval of legislation abridging the freedom of contract, it might fairly have been hoped that this case could reasonably be superimposed upon the principles and tendencies of the latest decisions and that the nation would not be remitted to the vicissitudes of

further constitutional amendment. The majority opinion reviews the various classes of cases in which such laws have been upheld, and professes to see controlling distinctions, reasoning as follows. Statutes limiting rates and charges are valid when the regulations are imposed upon a business impressed with a public interest. Moreover, it is competent

3 Brandeis, J., having been counsel in behalf of the Oregon minimum wage law, did not participate in the case.

4 Munn v. Illinois, (1876) 94 U. S. 113; cf. Louisville & Nashville R. R. v. Mottley, (1911) 219 U. S. 467, 31 Sup. Ct. 265; see Allnutt v. Inglis, (1810) 12 East 527, 540.

for a legislature to enact laws prescribing the conditions upon which public works shall be done, and in this connection a law can even provide that aliens be excluded from such employment and that citizens of the particular state be given preference." Laws, furthermore, which regulate the manner in which wages are to be paid, as, requiring employers to redeem store orders in cash, are deemed a legitimate limitation on the right to contract, and are sustained as promotive of equality between employer and employee in the matter of wages.*®

7

The closest analogy of all, however, is found in statutes fixing the hours of labor, and these furnished the storm center of the controversy. The Court had committed itself to the view that the legislature may properly establish a maximum for women's hours of work; indeed, the principle had been partly extended to men.R But such legislation, says the majority of the Court, deals "with the incidents of the employment having no necessary effect upon the heart of the contract, that is, the amount of wages to be paid and received. A law forbidding work to continue beyond a given number

5 Heim v. McCall, (1915) 239 U. S. 175, 36 Sup. Ct. 78. • Knoxville Iron Co. v. Harbison, (1901) 183 U. S. 13, 22 Sup. Ct. 1; cf. State v. Peel Splint Coal Co., (1892) 36 W. Va. 802, 15 S. E. 1000.

7 Muller v. Oregon, (1908) 208 U. S. 412, 28 Sup. Ct. 324. 8 Bunting v. Oregon, (1917) 243 U. S. 426, 37 Sup. Ct. 435, where there was an allowance of a limited overtime, to be paid for at the rate of time and one-half.