ILLINOIS LAW REVIEW Published monthly except July to October, inclusive, by Nathan William MacChesney, President. $3 PER YEAR Frederic B. Crossley, Secretary and Treasurer PRICE OF THIS NUMBER 50 CENTS Subscribers who wish to discontinue their subscriptions at the end of the subscription period should notify the business office of the REVIEW; otherwise it will be assumed that a continuation of the subscription is desired. Ex-Officio, R. ALLAN STEPHENS, Secretary, Illinois State Bar Association To promote free expression of view on the part of contributors, the Editorial Board, collectively, assumes no responsibility for any statement in the columns of the REVIEW. Each article or communication, including editorial notes, comments on cases, and book reviews, is identified by the name or the initials of the writer. COMMENT ON RECENT CASES CONSTITUTIONAL LAW-DUE PROCESS OF LAW-MINIMUM WAGE ACT.-In the case of Adkins v. Children's Hospital 43 Sup. Ct. Rep. 394, in an opinion which was written by Mr. Justice Sutherland and concurred in by Justices Van Devanter, McReynolds, McKenna and Butler, but against the dissent of Chief Justice Taft and Associate Justices Holmes and Sanford (Associate Justice Brandeis not participating), the Supreme Court of the United States held unconstitutional under the Due Process provision of the Fifth Amendment, an Act of Congress which was made applicable to the District of Columbia alone and which provided for the appointment of a board of three members with full powers of investigation and the power to subpoena both witnesses and books and, after conference with the representatives of the employers and the employees, to fix the minimum rate of wages to be paid to female employees "in any occupation" within the district of Columbia. The Act made the finding of such board on questions of fact and necessity conclusive, and made a violation of such findings a criminal offense. The case is a sequel to the cases of Stettler v. O'Hara et al. and Simpson v. O'Hara 37 Sup. Ct. Rep. 475, though these cases are not mentioned in either the majority or the dissenting opinions. Stettler v. O'Hara and Simpson v. O'Hara were disposed of in a per curiam or memorandum opinion which contented itself with saying "Affirmed with costs by an equally divided court," and in them were involved the constitutionality under the Fourteenth Amendment of a somewhat similar statute of the State of Oregon, which had been sustained by the Supreme Court of the state. On the hearing in the Supreme Court of the United States, Mr. Justice Brandeis did not participate, as he had been of counsel in the state tribunals. There were two such hearings. Of the result of the first hearing the public was not informed, but it is fair to assume that the court stood four to three against the validity of the statute. Before any decision was announced, Associate Justice Lamar died, and Mr. Justice Brandeis was appointed in his place. He, however, was disqualified from sitting. Then Mr. Justice Hughes resigned. Then a reargument was ordered. Then Mr. Justice Clarke was appointed, and after the rehearing the judgment of the state court was affirmed by an equally divided court. Then Chief Justice White died and Chief Justice Taft was appointed in his place. Then Associate Justices Pitney, Day, and Clarke were succeeded by Justices Sutherland, Butler, and Sanford. The material difference between the Oregon state case and the one before us lies in the fact that since in the former a state and not a national statute was involved, the court might possibly have been inclined to yield to the judgment and discretion of the local court and of the local legislature when they might not have so yielded in a case in which an act of Congress and the Fifth Amendment alone were involved. No suggestion is made of this, however, in the case before us; in fact no reference is made to the former controversy. In the immediate case the majority and minority opinions represent the same two extremes of thought which seem to have divided the court in the Oregon adjudication. The dissenting opinions appear to favor an almost absolute surrender to legislative discretion, and argue that there is no material difference between the statute at bar and those which regulate the hours of labor or the methods of payment of wages and the weighing of coal in the mining industries. Mr. Justice Taft can see no material difference between maximum hours for women and minimum wages. He seems to recognize some remote connection at any rate between low wages and morals. He refuses to believe that the Nineteenth Amendment has taken away the necessity for the government's protection of women. cites the various cases which have sustained statutes regulating the method of paying wages in the mining industries, the weighing of coal, the truck shop, and the hours of labor in factories and in mines. Mr. Justice Holmes sees no difference between regulating the hours of labor and fixing a minimum wage. He seems to recognize the right to an almost unlimited interference with the freedom of the business contract and states that after the decision in Bunting v. Oregon 243 U. S. 426, he "had supposed that the case of Lochner v. New York 198 U. S. 45 would be allowed a deserved repose." Mr. Chief Justice Taft also referred to the Bunting case, in which a statute was upheld which limited "the hours of labor of any person, whether man or woman, working in any mill, factory, or manufacturing establishment, to ten hours a day," and said that it was impossible for him "to reconcile the Bunting case with the Lochner case" and that he supposed that "the Lochner case was overruled sub silentio." The majority opinion was written by Mr. Associate Justice Sutherland. It differentiates Munn v. Illinois 94 U. S. 113 and L. & N. Ry. Co., v. Mottley 219 U. S. 467, in which rates are fixed or regulated, by saying that the businesses therein concerned are affected with a public interest. It differentiates other cases on the ground that they relate to contracts for the performance of public work. It differentiates the coal mining, truck shop, and similar statutes by saying that "in none of the statutes thus sustained was the liberty of employer or employee to fix the amount of wages the one was willing to pay and the other was willing to receive interfered with." It said of the case of Holden v. Hardy 169 U. S. 366 that "this statute was sustained as a legitimate exercise of the police power, on the ground that the legislature had determined that these particular employments (underground mining) when long pursued were injurious to the health of the employees, and that, as there were reasonable grounds for supporting this determination on the part of the legislature, the decision in that respect was beyond the reviewing power of the federal courts." It cited with approval and relied largely upon the case of Lochner v. New York 198 U. S. 45 (the so-called New York bakeries case), in which it was held that the state court and the state legislature had gone beyond reason and that there was really no showing of any threatened injury to health or morals. It brushed aside the case of Bunting v. Oregon 243 U. S. 426, which Chief Justice Taft and Associate Justices Holmes and Sanford had construed as overruling the case of Lochner v. New York sub silentio, by saying that in it: "A statute forbidding the employment of any person in any mill, factory or manufacturing establishment more than ten hours in any one day, and providing payment for overtime not exceeding three hours in any one day at the rate of time and a half of the regular wage, was sustained on the ground that since the state legislature and the state supreme court had found such a law necessary for the preservation of the health of employees in these industries, this court (the Supreme Court of the United States) would accept their judgment in the absence of facts to support the contrary conclusion. This law was attacked on the ground that it constituted an attempt to fix wages, but that contention was rejected and the law sustained as a reasonable regulation of hours of service." Of the case of Wilson v. New 243 U. S. 332 (the so-called Adamson law decision) Mr. Justice Sutherland stated that the business concerned was affected with a public interest, and, moreover, that the act was temporary in its nature, "leaving the employers and employees free as to the subject of wages to govern their relations by their own agreements after the specified time." He added that "this act was not only temporary in this respect, but it was passed to meet a sudden and great emergency. This feature of the law was sustained principally because the parties for the time being could not or would not agree. Here they are forbidden to agree." The same differentiation was sought to be made of the socalled rent cases, Block v. Hirsch 256 U. S. 135 and Marcus Brown Holding Company v. Feldman 256 U. S. 170. "The operation of these statutes," Justice Sutherland said, "was temporary to tide over an emergency and the circumstances were such as to clothe the letting of buildings .with a public interest so great as to justify regulation by law." Of the cases of Muller v. Oregon 208 U. S. 412, Riley v. Massachusetts 232 U. S. 671, Miller v. Wilson 236 U. S. 373 and Bosley v. McLaughlin 236 U. S. 385, Mr. Justice Sutherland makes the significant statement that "the ancient inequality of the sexes other than physical as suggested in the Muller case has continued with diminishing intensity. In view of the great, not to say revolutionary, changes that have taken place since that utterance in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost if not quite to the vanishing point. In this aspect of the matter while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age and sui juris require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the cases of men under similar circumstances." Justice Sutherland then proceeds to hold the act under consideration unconstitutional on the ground that it does not seek to safeguard the health of women in employments detrimental to their health; that it is not confined in its operation to businesses that are affected with a public interest; that it is not a law which is temporary in its nature and enacted to meet some pressing emergency; that it is not aimed at the prevention of fraud; that the price fixed by the board need have no application to the earning power of the employee or the ability of the employer to pay; that it may result in forcing employees to renounce desirable employments and em ployers to dispense with the services of desirable employees; that it has not reference to the necessities of the employees or what other sources of revenue they may have; that "is based wholly on the opinions of the board and their advisers-perhaps an average of their opinions if they do not precisely agree as to what will be necessary to provide a living for a woman, keep her in health and preserve her morals. It applies to any and every occupation in the district, without regard to its nature or the character of the work. The standard furnished by the statute for the guidance of the board is so vague as to be impossible of practical application with any degree of accuracy. . The relation between earnings and morals is not capable of standardization. It cannot be shown that well-paid women safeguard their morals more carefully than those who are poorly paid. Morality rests upon other considerations than wages and there is certainly no such prevalent connection between. the two as to justify a broad attempt to adjust the latter with reference to the former." "This uncertainty of the statutory standard," the justice states, "is demonstrated by a consideration of certain orders of the board already made. These orders fix the sum to be paid to a woman employed in a place where food is to be served or in a mercantile establishment at $16.50 a week; in a printing establishment at $15.50 a week; in a laundry at $15 per week, with a provision reducing this to nine dollars in the case of a beginner. If a woman employed to serve food requires a minimum of $16.50 a week, it is hard to understand why the same woman working in a printing establishment or in a laundry is to get on with an income lessened by from $1 to $7.50 per week." Mr. Justice Sutherland then proceeds to state that the act can only result in making employers do without necessary service or the service of those who cannot earn the minimum wage and thus in itself tend to lack of employment and immorality, and then significantly adds that the power to fix high wages connotes an equal power to fix low wages, and that the power, if once conceded to fix a minimum wage must equally involve the power to fix a maximum wage when the public welfare is thought to require it. From a social and economic standpoint there can hardly be a dissent from the opinion of Mr. Justice Sutherland and even the writers of the dissenting opinions seem to entertain a serious doubt of the wisdom of the enactment under consideration. The question after all is whose judgment shall control and on that question it would seem that the Supreme Court of the nation by surrender after surrender and in a long series of cases have until now yielded the field. The first surrender was to the farmers in the Oleomargarine cases and the case of Powell v. Pennsylvania. The most abject was in the case of Wilson v. New, and that case, as construed by Mr. Justice Sutherland, merely means that if an organized minority is only aggressive and persistent any temporary measure is justifiable, and a continuance of the aggression and controversy can pile emergency upon emergency until the rule is established. If indeed he had rested his distinction on the ground that the railroad business |