the court recognized for debate was whether the regulation and the object proposed were sufficiently related, or whether "so utterly unreasonable and extravagant as merely to interfere with private enterprise. The Massachusetts minmum wage commission report of 1912 was pressed into use for evidence, and the sanction of the court was given to the act, declaring it of "common knowledge" that low wages demoralize both the public and the individuals immediately concerned. In fact the court attested that all arguments bearing upon the need of restricting women's hours are pertinent in the expression of their need for a minimum wage and that the act was not violative of the due process clause which, it was satisfied to declare, merely requires the usual procedure of a hearing before properly constituted tribunals.

Following the defeat of plaintiff Stettler, the litigation of this case was continued in the same year by an employee of Stettler named Simpson. The statute again stood the constitutional test on the ground that since the regulation of hours and wages was within the police power of the state, "it would follow as a natural corollary that the right to labor for such hours and at such wages as would reasonably seem to be detrimental to the health or welfare of the community is not a privilege or immunity of any citizen." The earlier Muller v. Oregon decision of the Federal Supreme Court relating to hours was adopted by the judiciary in this case as final authority.

In December of 1914 these cases in combination were carried to the United States Supreme court, not to be decided until January, 1917.2 The argument was heard and reheard with extensive testimony for the defendants in error prepared by Mr. Felix Frankfurter and Miss Josephine Goldmark. The final decision came in the form of an

1 Simpson v. O'Hara et al., 70 Ore. 261 (1914). 2 Stettler v. O'Hara, 243 U. S. 629 (1917).

evenly divided bench,' no opinions were delivered, and the Oregon court decision stood unchanged.

The steady progress of minimum wage legislation in its early life lent further momentum. The supreme courts of both Arkansas and Minnesota affirmed wage laws in 1917, both decisions being reversals of the dicta of district judges given prior to the federal review of the Oregon case. The Arkansas judiciary, relying upon Stettler v. O'Hara, wrote in conclusion:

It is a matter of common knowledge of which we take judicial notice that conditions have arisen with reference to the employment of women which have made it necessary for many of the States to appoint commissions to make a detailed investigation of the subject of women's work and their wages. Many voluntary societies have made this question the subject of careful investigation. Medical societies and scientists have studied the subject and have prepared written opinions. It has been the consensus of opinion and that of medical societies and scientific experts is that inadequate wages tend to impair the health of women in all cases and in some cases to injure their morals. Indeed, it is a matter of common knowledge that if women are paid inadequate wages so that they are not receiving enough food, this state will impair their health as overwork, and someone else may supply their wages.2

The Minnesota court emphasized the fact that the question at issue was "not what we ourselves think of the policy or justification of such legislation " but whether there is a reasonable basis for legislative belief that the conditions mentioned exist, that legislation is necessary and can con

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1 Justice Brandeis not partaking, having been substantially involved in the preparation of counsel's brief. Justice Brandeis, upon his appointment as Justice of the Supreme Court, left his unfinished work in the hands of Mr. Frankfurter.

2 State v. Crowe, 130 Ark. 272 (1917).

tribute to the promotion of the health and morals of the workers and the good order of the public.

In this economic strife, women as a class, are not on an equality with men. We think sufficient basis exists. It is not necessary that we should hold that statutes of this kind applicable to men would be valid. We think it clear that there is such an inequality or difference between men and women in the matter of ability to secure a just wage and in the consequences of an inadequate wage that the legislature may by law compensate for the difference. (Cases cited.) 1

The year 1918 added two more high state courts to the list of those affirming the right of the legislature to provide for minimum wages. In Washington, the aim toward public as well as individual protection was emphasized." In Massachusetts the court was intent upon explaining that the act was not mandatory, that is, it did not declare violation a misdemeanor for which criminal proceedings could be instituted. Thus the authorization of the commission to ascertain facts could not be construed as violation of the constitutional security against an employer's "being compelled to accuse or furnish evidence against himself." The court refused to "prophesy " whether a mandatory act would be declared unconstitutional by the Federal Supreme Court.*

The constitutionality of these laws was again affirmed in three state decisions in 1920 and 1921, with relatively simple procedure and firm reliance upon previous rulings in other states. The Texas court declared its belief that "the passage of such laws for the welfare and betterment of the conditions of working men, women, and children is matter well

1 Williams v. Evans et al., 139 Minn. 32 (1917). 'Larsen v. Rice, 100 Wash. 642 (1918).

* Massachusetts is the only state which has a minimum wage law of this type.

'Holcombe v. Creamer, 231 Mass. 99 (1918).

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within the province of the Legislature." 1 The supreme court of Washington in meeting a second request for judgment, preserved and strengthened its first by citations of subsequent cases. In Minnesota, the law was again challenged in the courts, and in this case as in that of 1917 beforementioned, an injunction was granted against the enforcement of the order of the minimum wage commission. The order was again reversed by the supreme court of the state and the statute declared constitutional. In this case the court explained,—“ the remedy may not be perfect, but it is such as the law gives. A temporary writ should not have been granted."

The progress of this type of special legislation for women was thus marked. In 1921, Mr. Lindley D. Clark of the United States Bureau of Labor Statistics wrote that although the decision of the Federal Supreme Court had merely permitted the Oregon decision to stand, by an equally divided bench, the conclusion seems warranted that no successful attack can be anticipated upon the principle of these laws in view of the absolute uniformity with which they have been maintained in the different States where pressed to a decision in the court of last resort." *

It was at this very time that the minimum wage law of the District of Columbia was hanging in the balance in the courts, after which, despite confident prophecy and courageous effort, it dropped to defeat. The statute of the District enacted by Congress in 1918 in two separate instances was

1 Poye v. State of Texas, 230 S. W. Rep. 161 (1921) affirming decision of 1920. The Texas act was repealed in 1921 however, and a new law enacted in the same year was vetoed by the Governor. Texas is thus without a minimum wage law.

2 Spokane Hotel v. Younger, 113 Wash. 359 (1920).

› Williams v. Evans, 139 Minn. 32 (1917); G. O. Miller Telephone Co. v. Min. Wage Comm., 145 Minn. 262 (1920).

"Minimum Wage Laws of the United States," Monthly Labor Review, Bureau of Labor Statistics, Washington, March, 1921, p. 5.

alleged to be a deprivation of property without due process of law and an interference with the right of free contract. One case was that of the Children's Hospital of the District which sought an injunction against the minimum wage board to restrain it from requiring payment of a wage to their employees different from the wage contract which they had made. The other case was that of Willie Lyons, a woman elevator operator, who protested against the wage requirement of the board on the grounds that she desired to keep her position but that she would not be permitted to do so if it was required that the advanced rates be paid to her.

These cases taken together brought two decisions but one year apart pronouncing the act valid, that by the supreme court of the District on June 2, 1920 and that by the District court of appeals on June 6, 1921. After the latter hearing, Justice Smyth delivered the opinion of the majority with Justice Van Orsdel in hot dissent. Justice Smyth made clear his conception of the function of the court and that this was a time when the court should not interfere with the act of congress.

For us the question is one of power, not of expediency when Congress legislates for the District of Columbia it may exercise the police power in all its plentitude. . . . [The basis for court review, therefore, is whether] a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law. [Cases cited.]

In response to the question of relation between statute and object thereof, the Justice resorted to "common knowledge" making a curious comparison in declaring that as stagnant water is a breeding place for malarial bacteria and is removed by an exercise of the police power with sanction of the country's highest tribunal, so,