as well as the Minimum Wage case. These and other cases have occasioned criticism from high and conservative sources. This list should not be extended if the courts are to retain the exalted position in our government that has almost universally been accorded them.

Critical in a different way, it is here suggested that many changes have come about in industry since 1787, and that the Amendments to our Constitution have not grown directly out of any of them. These changes are especially evident in that successor to the master and servant relation, the employer and employee relation-which expresses a new industrial era quite revolutionary in the extent of the changes. An eighteenth century constitution cannot, without change, be fitted to these twentieth century conditions. The new wage relations must be given scope to adjust themselves. Quite necessarily there must be experimentation. Minimum wage, minimum hours, standard of living, collective bargaining, welfare work, arbitration, both compulsory and voluntary; these are only a few of the list of proposed measures, none of which can be scientifically shown to be either good or bad as concrete policies by method of logic. The Supreme Court has declared the wage-fixing function of the Kansas Industrial Court to be an activity in violation of the Constitution of the United States. Pos

529; Bailey v. Drexel Furniture Co., (1922) 259 U. S. 20, 42 Sup. Ct. 449.

sibly they were right. Granting that the people of Kansas have a republican form of government, it must be admitted that those people desired to try this method of handling a phase of the wage question. There was an opportunity to try a plan and get some experience based on its operation. If the federal Supreme Court had appreciated this, it would seem that the law might have appeared reasonable. The court has shut the door to that effort. It has done so on the basis of logic, not on the basis of either science or the scientific spirit.

There are many experiments to be made. Many of them should be made. If it is made possible to experiment, the contending interests will have ground on which to settle their differences by constitutional rivalry. If this opportunity is not afforded by the courts through the agency of constitutional interpretation, it must come about through the less desirable method of constitutional amendment, a method less desirable for more reasons than one. Should this latter not be accomplished, there may appear a reshaping of the conflicting forces with results that there is no occasion here for naming. Extremes gather force only against continued resistance.

A further discussion of the programs for wage adjustment would lead to the constructive consideration of this theme and that must be undertaken at another time.

THE MINIMUM WAGE DECISION

GEORGE W. GOBLE

Kentucky Law Journal
November, 1923

IN the combined cases of Adkins v. Children's Hospital and Same v. Lyons1 the Supreme Court has again rendered a decision which has been the subject of severe criticism from many sources. The cases involved the validity of the District of Columbia minimum-wage law. Congress passed an act creating a Minimum Wage Board which was to "ascertain and declare what wages were inadequate to supply the necessary cost of living to women workers, to maintain them in good health and to protect their morals," and was empowered "to fix standards of minimum wages for women in any occupation" in the District of Columbia.

In two cases in which one decision was rendered the validity of this act was questioned. In the first case a hospital for whose nurses wages had been fixed by the Minimum Wage Board, instituted a suit to restrain the board from enforcing its order. In the second, a woman who had been operating an elevator in the Congress Hotel in Washington was 1 (1923) 43 Sup. Ct. Rep. 394.

discharged because of the hotel's inability to pay the price set by the board. She also asks for an injunction against the enforcement of the order of the board. In both of these cases the constitutionality of the minimum wage act was questioned on the ground that it was an unjustifiable interference by Congress with the liberty of contract. The cases involve the old problem of drawing the line between two contending principles-the police power on the one hand, which enables congressional action, and the constitutional guarantee against deprivation of liberty, on the other hand which denies the power of congressional action. Does the police power protect the law's validity, or does the constitutional guarantee destroy it?

Many times it has been decided2 that if the public health or morals are sufficiently needy of correction, Congress is enabled through the police power to furnish the correction. But if the public health or morals are not sufficiently needy Congress is disabled, through the constitutional guarantees to furnish the correction.

In order to sustain the constitutionality of a law under the police power it must appear (1) that there was a general need for some law, i. e., that there was a health evil, moral evil, or some other public

2 Munn v. Ill., (1876) 94 U. S. 113, 24 L. Ed. 77; Brass v. North Dakota, (1894) 153 U. S. 391; German Alliance Ins. Co. v. Lewis, (1914) 233 U. S. 389; Block v. Hirsh, (1921) 256 U. S. 135, 65 L. Ed. 865, 16 A. L. R. 165.

evil, which needed correction, and (2) that the proposed law is reasonably calculated to remedy to some extent such evil.

In the instant case the evil appears to have been the existence of immorality and poor health among women workers in the city of Washington, as well as their inequality with their employers in bargaining power. These facts seem not to have been seriously denied. The whole controversy was upon the question as to whether or not the requirement that employers shall pay a certain minimum wage, was reasonably calculated to remove to any extent the evil. The majority of the court held that the legislation would not remedy the evil and that therefore the police power could not be invoked to sustain the validity of the law. But a vigorous minority, Chief Justice Taft and Justice Sanford and Holmes, thought that the means used by Congress to remedy the situation could not be said to be unreasonable, and that therefore Congress had power to enact the law.

The case seems close. Much can be said to support either view. But it is believed that the minority opinions follow more closely the guiding principles formerly enunciated by the Court. Mr. Justice Sutherland, speaking for the Court, points out very forcibly many instances of the law's unreasonable operation, and cases where it would seem to work positive injustice and make unnecessary discriminations. His language is: