nomic and ethical objections to minimum-wage legislation is that it fixes a wage in disregard of the value of the services rendered or the benefit obtained therefrom, and therefore,

to the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole.33

Throughout the argument it is assumed that the statute, in so far as it operates at all, compels the employer to choose between charity or the abandonment of his enterprise. The option of the employer is described as "generously leaving him, of course, the privilege of abandoning his business as an alternative for going on at a loss." 34 No mention is made of the third posibility that the employer may secure male employees not subject to the act, though this, in fact, is what the employer did in the case at bar. There is no suggestion that it would be unconstitutional to force the employer to choose between abandoning his business or paying labor what it was really worth, so that the lack of any saving grace in the option to abandon is predicated wholly on the denial of

33 At p. 557.

34 Ibid.

the opportunity to secure labor at a wage not in excess of its value. The choice that cannot constitutionally be forced upon the employer is that between going out of business or giving alms to those for whom he has no peculiar responsibility.

This analysis assumes some standard of what labor is worth, which may be less than what it costs some one to enable the laborer to furnish it. Nowhere does Mr. Justice Sutherland specify this standard or indicate how it is to be ascertained. Nowhere does he affirm that the value of the employee's contribution is the lowest wage that the employer could bargain for if unrestrained by law. We know that some economists, by a cycle of abstractions, have established to their own satisfaction that under "free bargaining" a laborer gets what he is worth and is worth what he gets. The proof is fascinating in its ingenuity and intricacy, but all it shows is that under free bargaining the wages paid are the wages that labor is able to get. It gives us nothing but a statement of results under given conditions. If Mr. Justice Sutherland insisted upon this as the exact measure of the contribution of labor to the joint enterprise in which it is engaged, it might be worth while to elaborate the deficiencies of the conception. It is quite plain, however, that he has something else in mind, for he says that "a statute requiring an employer. . . to pay the value of the services rendered, even to pay with fair relation to the extent of the benefit obtained from the service, would be under

standable." 35 He could not, of course, suggest such a statute if he thought it merely declaratory of the status quo in the absence of any statute. He, therefore, must have in mind some standard of the "fairequivalent of the service rendered" which may be higher than the level determined by higgling and lower than the level of the cost of decent subsistence.

Further recognition that the wages received at any given time do not measure the exact contribution of the laborer is to be inferred from the qualified approval accorded to the efforts of trade organizations to raise wages. 36 It cannot seriously be thought that increase by this method is inevitably accompanied by corresponding increase in the physical quantity of the product of the factory in which the increase obtains. Lament to the contrary is abundant. Any tendency to increase the price obtainable for that product would find a counterpart in increase of wages by legislation. By implication Mr. Justice Sutherland seeks to differentiate increase by organization

35 At p. 559.

36 "The ethical right of every worker, man or woman, to a living wage may be conceded. One of the declared and important purposes of trade organizations is to secure it. And with that principle and with every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that every employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz., that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored." 261 U. S. 525, 558.

from increase by legislation, when he says that the latter method assumes that the employer is bound at all events to furnish it, and that it ignores the moral requirement that the wage and the work bear to each other some relation of just equivalence. In both cases, however, the employer is free to refrain from hiring; in neither case is there secured any just equivalence between wage and service except as the employer by hiring on the terms obtainable indicates that he prefers the particular bargain to none at all. The only difference is that, when the law fixes no minimum, the employer has still the possibility of securing labor from the ranks of those who may prefer to work for wages less than the cost of living rather than to continue the struggle to get something better. Minimum-wage legislation curbs the employer in the use of his bargaining power, and therefore it raises wages above the level that would be fixed by bargaining, but the bargaining and the prescription of the cost-of-living standard are alike in not being premised on "the value of the services rendered."

The invalidity of minimum-wage legislation is thus predicated on its disregard of a standard that is wholly mythical. Mr. Justice Sutherland honors the myth by reiterated invocation, but he shirks completely the obvious obligation of translating the myth into something comprehensible or ascertainable. He does not contend that the cost-of-living standard necessarily exceeds his value-of-services standard,

but merely that it may do so and that to the extent to which it does do so it is an arbitrary exaction. Under the precedents involving rate regulation this should invalidate only what is in excess of the assumed constitutional standard. The failure thus to draw the line may perhaps be ascribed to unconscious recognition that no such line is drawable. Though the opinion says that legislation requiring wages to correspond to the value of the services rendered would be "understandable," the decision annulling the price-regulation provisions of the Lever Act indicates that the Supreme Court would rightly hold it void for indefiniteness.37

37 United States v. Cohen Grocery Co., 255 U. S. 81 (1921). See also International Harvester Co. v. Kentucky, 234 U. S. 216 (1914); Collins v. Kentucky, 234 U. S. 634 (1914); United States v. Pennsylvania R. R. Co., 242 U. S. 208, 237, 238 (1916). To these may be added Mr. Justice Sutherland's condemnation of the indefiniteness of the standard of the cost of living when he says, at p. 555:

"The standard furnished by the statute for the guidance of the board is so vague as to be impossible of practical application with any reasonable degree of accuracy. What is sufficient to supply the necessary cost of living for a woman worker and maintain her in good health and protect her morals is obviously not a precise or unvarying sum-not even approximately so. The amount will depend upon a variety of circumstances: the individual temperament, habits of thrift, care, ability to buy necessaries intelligently, and whether the woman live alone or with her family. To those who practice economy, a given sum will afford comfort, while to those of contrary habit the same sum will be wholly inadequate."

This complaint is not that the statute is void for failure definitely to inform the employer what he must pay, but that