The injurious consequences

conclusion is without warrant. were thought by the Legislature to bear more heavily against women than men, and, considering their more delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing.1

With recognition of the traditional distinction between courts and legislatures which we have seen is not always observed, the Justice then continued,

Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state Legislature here determined that night employment of the character specified was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression, and, since we are unable to find reasonable grounds for a contrary opinion, we are precluded from reviewing the legislative determination.

In his defense against the charge of unequal protection of the statute, the Justice quoted from an opinion delivered earlier by Mr. Justice Hughes, "that the Legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach."

This decision of the United States Supreme Court has been acclaimed country wide by those who believe that women in industry should have special protection. The opinion came with particular welcome because of the adverse

1 Radice v. People, 264 U. S. 292 (1923).

decision of the same highest court a year earlier declaring invalid the District of Columbia minimum wage law for women. Because of that decision, advocates of legislation have keenly feared that the Muller v. Oregon case of 1908 concerning women's hours might cease to control, but these fears have now, for the time being at least, been quieted.

Thus in this long line of decisions, the courts have, with few exceptions and with striking uniformity, favored limiting the working hours of women. Prior to 1900, one tribunal had affirmed this legislation, and one tribunal had set such a statute aside, on the grounds that sex alone was not justification for special protection. The Pennsylvania case in 1900, however, marked the beginning of a new judicial philosophy in regard to women-a philosophy based upon physical inferiority" and "potential motherhood." The courts stressed their belief that certain employments are harmful to women and not to men, and that women like children are “wards of the state," that for both of these reasons they are in peculiar need of legislative supervision.

In the Oregon cases of 1906 and 1908, women were no longer designated as wards of the state, but the stress was placed more directly upon their differences from men physically, and their function as mothers. These conditions, together with our folkways-which have reduced the selfreliance of women and made it usual for them to be dependent upon their brothers-seem to have become justifications for their special protection.

SUMMARY

In summary of the analysis so far made of the attitude of the courts regarding protective labor laws for men and for women, some observations may well be drawn.

Except for decisions regarding minimum wages which are about to be discussed, wage-payment acts sustained by

the courts have applied alike to all workers, as also have oneday-of-rest-in-seven laws and acts limiting hours in extrahazardous industries. In a few cases the courts have arbitrated controversies respecting prohibited employment of women and have sustained such prohibition; and now the prohibition of women's night work appears to be constitutionally secure. In "non-hazardous" industries statutes limiting daily working hours have been sustained more often when they have applied to women than when they have applied to men, but a tendency toward the convergence of the respective arguments is perceptible. For example, we have noticed that while the extensive brief which convinced the United States Supreme Court in 1908 that a ten-hour law especially for women was necessary to public welfare, a second extensive brief less than a decade later and chiefly by the same authors, convinced the same high court that a ten-hour law for men as well as women is not unconstitutional. In the interim between these cases, Judge Learned Hand for the Illinois court followed the lead of the earlier brief and decision, and declared that "it is known to all men . . . that while men can work for more than ten hours, women cannot.”

This is but one instance among many others which has led some people to have a growing sense that "common knowledge" is not adequate knowledge that it is too often an expression of tradition or mere emotion rather than of fact. And the corollary to this view is a growing recognition of the need of more facts covering the entire field of human physiological depreciation under overstrain for the enlightenment of the judiciary, as well as for the use of the legislature where the statutes are formed. Also, as facts are accumulated, there appears to be a widening conviction that men as well as women must have protection from the ravages of modern industry. One authority has ventured the following prediction:

... in view of our increasing knowledge of the dangers of overwork, especially in continuous industries, the principle of hour restriction, first established for women and children, may eventually be extended to cover all wage-earning men. The laws for one day of rest in seven, and the favorable decision of the United States Supreme Court on an Oregon law for ten hours in manufacturing, make it not unlikely that a period of hour regulation for adult male workers has begun.1

MINIMUM WAGES

Minimum wage legislation has been defeated in the constitutional test by the highest tribunal of the country. Although the issue divided the judicial bench and the vote of five to three has been the target for sharp criticism, the decision stands-powerful, if, by many, unaccepted as final.

Prior to this decree of the Federal Supreme Court which invalidated the law of the District of Columbia, and the annulment in the lower court which led to the appeal, minimum wage laws for women so far tested had been uniformly countenanced in the higher courts. An explanation of this growth may be that the minimum wage is a very recent type of legislation in America which did not make its appearance in the courts until after the magic effect of statistical data had been recognized. Though still relatively rare, statistical data have been increasingly presented to the courts for their enlightenment in the review of specific cases, with the effect, almost unfailingly, that the decision has been made on the side upon which the data threw weight. Moreover, the special commission, which is practically indispensable for the administration of a minimum wage law, makes a practical organ for the collection of material regarding the need of such legislation and its operation.

An historical analysis of the attitude of American courts in minimum wage cases does not lead us back very far. The

1 Commons and Andrews, op. cit., p. 248 (1920).

state of Oregon again furnishes the first judicial contests, beginning in 1914, though the initial act providing for a minimum wage was passed in Massachusetts in 1912. The Oregon act of February 17, 1913 was entitled "An act to protect the lives and health and morals of women and minor [all under 18 years of age] workers, and to establish an industrial welfare commission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act." The duties of the commission were stated to include that of declaring what hours of labor are unreasonably long, what working conditions are detrimental to health or morals, and what wages are inadequate for a respectable living. Orders of the commission resulting from the act were a nine-hour day and a fifty-hour week, with forty-five minutes for the noon meal and a minimum wage of $8.64 for women in Portland manufacturing establishments.

1

Ensuing from the orders of the Oregon commission, came the protest of proprietor Stettler alleging deprivation of property and the right to contract, and the denial of equal protection of the laws. All contentions were set aside on the grounds that the act was a proper exercise of the police power of the state and not subversive of the constitution of the United States. Other restrictive measures within the meaning of the constitution were cited, as maximum hour provisions for employees on public works and in mines, and for women and children in manufacturing, mercantile and mechanical establishments. The creation of the industrial welfare commission was held to be a legal delegation of administrative authority to secure compliance with the orders of the legislature and not, as alleged, to act as a substitute for the legislature. The only allegation that 1 Stettler v. O'Hara et al., Ind. Welfare Com., 69 Ore. 519 (1914).