which handed down a unanimous decision, written by Judge Eakin declaring the law constitutional. The arguments of the plaintiffs had been396 that it abridged freedom of contract, that the legislature in giving authority to the Commission to promulgate wage rulings, had invalidly delegated to the latter body a power vested only in itself, that the act took away property without due process of law, and that the statute was class legislation. Justice Eakin's decision in the case of the complaining employer declared:397

"It is conceded by all students of the subject, and they are many and their writings extensive, that woman's physical structure and her position in the economy of the race renders her incapable of competing with man either in strength or endurance." He then quoted extensively from Muller v. Oregon in support of this contention and stated the question at issue as previously framed by Judge Cleeton: "The first and principal question for decision is whether the provisions of the act before us are within the police power of this state. We use the language of Mr. Malarkey: "The police power which is another name for the power of government, is as old and unchanging as government itself. If its existence can be destroyed, government ceases. There have been many attempts to define the police power and its scope; but because of confusing the power itself with the changing conditions calling for its application, many definitions are inexact and unsatisfactory. The courts have latterly eliminated much of this confusion by pointing out that, instead of the power being expanded to apply to new conditions, the new conditions are, as they arise, brought within the immutable and unchanging principles underlying the power. When new conditions arise which injuriously affect the health or morals or welfare of the public, we no longer say that we will expand the public power to reach out and remedy evil. Instead we say that a new evil has arisen which an old principle of government-the police power, will correct.'"'

The Court concluded that "every argument put forward to sustain the maximum hours law or upon which

it was established applies equally in favor of the constitutionality of the minimum wage law as also within the police power of the state and as a regulation tending to guard the public morals and the public health".

Justice C. J. McBride wrote the decision in Simpson v. O'Hara, et al.,398 and held that "Having determined in the preceding case that the police power of the state legitimately extended to the right to prevent the employment of women and children for unreasonably long hours or at unreasonably small wages

it

would seem to follow as a natural corollary that the right to labor for such long 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. But that the effect (of the fourteenth amendment) would be to limit the power of the States to enact reasonable laws for the protection of their women and children against the consequences of labor for a length of time tending to impair health or at a wage barely sufficient to sustain life never entered the imagination of the statesmen who framed it".

An appeal was taken to the United States Supreme Court where Stettler v. O'Hara was argued in the spring of 1916; no decision was reached, and the case was called for reargument in January 1917. By that time, Mr. L. D. Brandeis, who had prepared a brief for the hearing before the State Supreme Court had been appointed a member of the United States Supreme Court. The vote of the Honorable Justices stood four to four, Justice Brandeis not voting, and the law was allowed to operate without a decision on its constitutionality.

EFFECTS OF THE LAW-DIRECT EFFECTS.

There are certain effects which the operation of the law, because of its intent and its methods of administration, is calculated to bring about. The more imme

diate and tangible ones are those which spring from situations, claimed by opponents of the law, as inescapable sources of failure for wage legislation. For this very reason, these obvious and tangible effects are the ones on which popular opinion bases its judgment as to the success or failure of the minimum wage act. These are the effects on the crippled, slow or aged workers, on the number of women workers, on their efficiency and on the leveling of wages.

The effect on the crippled, slow or aged workers: Provision against working an injury to the crippled, slow or aged woman who could not earn the required wages, was made by a clause in the statute which permitted the Commission to grant special licenses to such workers. The number who obtained these permits is surprisingly small in view of the frequent assertion that there are many women who are so slow that they cannot earn a living wage. During the first three years in which the Commission was in existence twenty special licenses were issued to adult women to work for less than the prescribed wage.399 From 1916 until 1919, this average, about six licenses a year, prevailed,400 hence we may with reason conclude that the wage act will not work to the detriment of the physically handicapped

wage earner.

What the immediate effects of the law were on the numbers of women employed and their displacement by men, the efficiency of women workers, and the leveling of wages was brought out by an investigation of the U. S. Bureau of Labor Statistics, 1914, on "The Effect of Minimum Wage Determinations in Oregon' 401

As to the effect on the number of women employed and the displacement of women by men, the investigators stated that though the number of women employed had decreased after the determinations went into effect, the number of men (who were not affected) had decreased also but that "little if any loss of employment among women as a group can be related to the minimum wage determinations"; further, "the wage determinations did not put men in the positions vacated by women", partly because of the advanced rate required for women.

Five years later, in 1919, an agent of the Federal Bureau of Labor Statistics seeking new information on the operation of the law, visited thirteen establishments in Portland, employing 5,500 women, and ten establishments in two smaller cities, with 360 employes.402 He records a report of the Commission "that there was no case known of actual deprivation of opportunity due to the law".

Census statistics for 1910 and 1920 give us interesting information as to the number of women employed three years before and seven years after the law went into effect.403 In 1910, 17.5 per cent, and in 1920, 18.4 per cent of the female population over ten years of age in Oregon wage earners. This was an increase of .9 per cent for the decade. As there was a decrease of three per cent in the number of men employed during the same period, we might conclude that women had displaced the men were not other explanations of the census figures available. The census directors ascribe the decrease in the number of men gainfully employed to the change of the date for collecting statistics in 1920. Statistics for the census of 1910 were collected on April 15, when work in logging camps, general construction lines and agriculture was opening up. The facts for the 1920 census were collected on January 1st, when the above and other seasonal industries were closed, hence a smaller number of men was reported as gainfully employed than would have been the case at a later date.404

The effect of the wage rates on the efficiency of the workers.-The study of 1914 was made in the mercantile stores of the state, hence the report states "a comparison of sales made by women raised to, receiving, or who should have received the minimum, with those of women receiving above the rates does not reveal differences that would indicate a decrease in the efficiency of those affected by the wage determinations" 405

Testimony of employers concerning the work of women during the war when wages were decidedly above the minimum, even discounting the patriotic incentive to steady work, disproves the allegation that women "soldier" at their work when well paid.406 "The em

ployers stated without exception that the women were as capable as men, could in time become as skillful in the more complex tasks, were steadier, quicker and more dependable workers. A number declared they would not discharge the women after the close of the war upon the return of the soldiers, believing that women had made a new place in industry for themselves" 407 The Federal inquiry of 1919 has this to say on this point: "The law had never interfered with the employment of girls, nor did it increase the actual selling cost, as attention given to the training of the selling force enabled the workers to become more efficient. . . Another em. ployer felt that the law was advantageous in attracting a better class of workers and in stabilizing employment" 408

The opponents of minimum wage legislation had based part of their argument on the supposition that if some women were not dismissed so that salaries might be utilized to raise those below standard, the wages of the highly paid would certainly be reduced to make up the difference. That neither of these happened is proved conclusively by the report.409

"The rates of pay for women as a whole have increased. Wherever the wage rates of old employes have been changed since the minimum wage rulings, the employes were benefitted. More girls under 18 years received over $6.00 a week than before the minimum wage determinations. Among the experienced women not only the proportion getting $9.25 (the legal minimum) but also the proportion getting over $9.25 has increased. The proportion of the force getting over $12.00 has also increased, although the actual number has decreased. (Page 9.) The per cent receiving $9.25 was increased from 8.4 per cent to 22.4 per cent. The per cent of the force receiving over $9.25 a week was increased from 40.6 per cent to 44.8 per cent. As a whole therefore, the rates of the women employed in these 40 stores have been materially increased since the wage rulings.

The Federal inquiry of 1919 gives further information to show that the minimum wage has not become the