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Mr.
Justice McKenna delivered the opinion of the court:
Indictment charging a violation of a statute of
the state of Oregon, 2 of which provides as follows:
'No person shall be employed in any mill, factory
or manufacturing establishment in this state more than ten hours in any
one day, except watchmen and employees when engaged in making necessary
repairs, or in case of emergency, where life or property is in imminent
danger; provided, however, employees may work overtime not to exceed
three hours in any one day, conditioned that payment be made for such
overtime at the rate of time and one half of the regular wage.'
[Laws 1913, chap. 102, p. 169.]
A violation of the act is made a misdemeanor, and
in pursuance of this provision the indictment was found. It charges a
violation of the act by plaintiff in error, Bunting, by employing and
causing to work in a flour mill belonging to the Lake View Flouring
Mills, a corporation, one Hammersly for thirteen hours in one day,
Hammersly not being within the excepted conditions, and not being paid
the rate prescribed for overtime.
A demurrer was filed to the indictment, alleging against its sufficiency
that the law upon which it was based is invalid because it violates the
14th Amendment of the Constitution of the United States and the
Constitution of Oregon.
The demurrer was overruled; and the defendant, after arraignment, plea
of not guilty, and trial, was found guilty. A motion in arrest of
judgment was denied and he was fined $50. The judgment was affirmed by
the supreme court of the state. The chief justice of the court then
allowed this writ of error.
The consonance of the Oregon law with the 14th
Amendment is the question in the case, and this depends upon whether it
is a proper exercise of the police power of the state, as the supreme
court of the state decided that it is.
That the police power extends to health
regulations is not denied, but it is denied that the law has such
purpose or justification. It is contended that it is a wage law, not a
health regulation, and takes the property of plaintiff in error without
due process. The contention presents two questions: (1) Is the law a
wage law, or an hours-of-service law? And (2) if the latter, has it
equality of operation?
Section 1 of the law expresses the policy that
impelled its enactment to be the interest of the state in the physical
well-being of its citizens and that it is injurious to their health for
them to work 'in any mill, factory or manufacturing establishment' more
than ten hours in any one day; and 2, as we have seen, forbids their
employment in those places for a longer time. If, therefore, we take the
law at its word, there can be no doubt of its purpose, and the supreme
court of the state has added the confirmation of its decision, by
declaring that 'the aim of the statute is to fix the maximum hours of
service in certain industries. The act makes no attempt to fix the
standard of wages. No maximum or minimum wage is named. That is left
wholly to the contracting parties.' [71 Or. 275, L.R.A. 1917C,
1162, 139 Pac. 731, Ann. Cas. 1916C, 1003.]
It is, however, urged that we are not bound by
the declaration of the law or the decision of the court. In other words,
and to use counsel's language, 'the legislative declaration of
necessity, even if the act followed such declaration, is not binding
upon this court. Coppage v. Kansas, 236 U.S. 1 , 59 L.
ed. 441, L.R.A.1915C. 960, 35 Sup. Ct. Rep. 240.' Of
course, mere declaration cannot give character to a law nor turn illegal
into legal operation, and when such attempt is palpable, this court
necessarily has the power of review.
But does either the declaration or the decision
reach such extreme? Plaintiff in error, in contending for this and to
establish it, makes paramount the provision for overtime; in other
words, makes a limitation of the act the extent of the act; indeed,
asserts that it gives, besides, character to the act, illegal character.
To assent to this is to ascribe to the
legislation such improvidence of expression as to intend one thing and
effect another; or artfulness of expression to disguise illegal purpose.
We are reluctant to do either, and we think all the provisions of the
law can be accommodated without doing either.
First, as to plaintiff in error's attack upon the
law. He says: 'The law is not a ten-hour law; it is a thirteen-hour law
designed solely for the purpose of compelling the employer of labor in
mills, factories, and manufacturing establishments to pay more for labor
than the actual market value thereof.' And further: 'It is a ten-hour
law for the purpose of taking the employer's property from him and
giving it to the employee; it is a thirteen-hour law for the purpose of
protecting the health of the employee.' To this plaintiff in error adds
that he was convicted, not for working an employee during a busy season
for more than ten hours, but for not paying him more than the market
value of his services.
The elements in this contention it is difficult
to resolve or estimate. The charge of pretense against the legislation
we, as we have already said, cannot assent to. The assumption that
plaintiff in error was convicted for not paying more in a busy season
than the market value of the services rendered him, or that, under the
law, he will have to do so, he gives us no evidence to support. If there
was or should be an increase of demand for his products, there might
have been or may be an increase of profits. However, these are
circumstances that cannot be measured, and we prefer to consider with
more exactness the overtime provision.
There is a certain verbal plausibility in the
contention that it was intended to permit thirteen hours' work if there
be fifteen and one-half hours' pay, but the plausibility disappears upon
reflection. The provision for overtime is permissive, in the same sense
that any penalty may be said to be permissive. Its purpose is to deter
by its burden, and its adequacy for this was a matter of legislative
judgment under the particular circumstances. It may not achieve its end,
but its insufficiency cannot change its character from penalty to
permission. Besides, it is to be borne in mind that the legislature was
dealing with a matter in which many elements were to be considered. It
might not have been possible, it might not have been wise, to make a
rigid prohibition. We can easily realize that the legislature deemed it
sufficient for its policy to give to the law an adaptation to occasions
different from special cases of emergency for which it provided,-
occasions not of such imperative necessity, and yet which should have
some accommodation; abuses prevented by the requirement of higher wages.
Or even a broader contention might be made that the legislature
considered it a proper policy to meet the conditions long existent by a
tentative restraint of conduct rather than by an absolute restraint, and
achieve its purpose through the interest of those affected rather than
by the positive fiat of the law.
We cannot know all of the conditions that
impelled the law or its particular form. The supreme court, nearer to
them, describes the law as follows: 'It is clear that the intent of the
law is to make ten hours a regular day's labor in the occupations to
which reference is made. Apparently the provisions permitting labor for
the overtime on express conditions were made in order to facilitate the
enforcement of the law, and in the nature of a mild penalty for
employing one not more than three hours overtime. It might be regarded
as more difficult to detect violations of the law by an employment for a
shorter time than for a longer time. This penalty also goes to the
employee in case the employer avails himself of the overtime clause.'
But we need not cast about for reasons for the
legislative judgment. We are not required to be sure of the precise
reasons for its exercise, or be convinced of the wisdom of its exercise.
Rast v. Van Deman & L. Co. 240 U.S. 342, 365 , 60 S. L. ed.
679, 690, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370. It
is enough for our decision if the legislation under review was passed in
the exercise of an admitted power of government; and that it is not as
complete as it might be, not as rigid in its prohibitions as it might
be, gives, perhaps, evasion too much play, is lighter in its penalties
than it might be, is no impeachment of its legality. This may be a
blemish, giving opportunity for criticism and difference in
characterization, but the constitutional validity of legislation cannot
be determined by the degree of exactness of its provisions or remedies.
New policies are usually tentative in their beginnings, advance in
firmness as they advance in acceptance. They do not at a particular
moment of time spring full-perfect in extent or means from the
legislative brain. Time may be necessary to fashion them to precedent
customs and conditions, and as they justify themselves or otherwise they
pass from militancy to triumph or from question to repeal.
But passing general considerations and coming
back to our immediate concern, which is the validity of the particular
exertion of power in the Oregon law, our judgment of it is that it does
not transcend constitutional limits.
This case is submitted by plaintiff in error upon
the contention that the law is a wage law, not an hours-of-service law,
and he rests his case on that contention. To that contention we address
our decision and do not discuss or consider the broader contentions of
counsel for the state that would justify the law even as a regulation of
wages.
There is a contention made that the law, even
regarded as regulating hours of service, is not either necessary or
useful 'for preservation of the health of employees in mills, factories,
and manufacturing establishments.' The record contains no facts to
support the contention, and against it is the judgment of the
legislature and the supreme court, which said: 'In view of the
well-known fact that the custom in our industries does not sanction a
longer service than ten hours per day, it cannot be held, as a matter of
law, that the legislative requirement is unreasonable or arbitrary as to
hours of labor. Statistics [243 U.S. 426, 439] show that the
average daily working time among workingmen in different countries is,
in Australia, 8 hours; in Britain, 9; in the United States, 9 3/4; in
Denmark, 9 3/4; in Norway, 10; Sweden, France, and Switzerland, 10 1/2;
Germany, 10 1/4; Belgium, Italy, and Austria, 11; and in Russia, 12
hours.'
The next contention of plaintiff in error is that
the law discriminates against mills, factories, and manufacturing
establishments in that it requires that a manufacturer, without reason
other than the fiat of the legislature, shall pay for a commodity,
meaning labor, one and one-half times the market value thereof while
other people, purchasing labor in like manner in the open market, are
not subjected to the same burden. But the basis of the contention is
that which we have already disposed of; that is, that the law regulates
wages, not hours of service. Regarding it as the latter, there is a
basis for the classification.
Further discussion we deem unnecessary.
Judgment affirmed.
The CHIEF JUSTICE, Mr. Justice Van Devanter, and Mr. Justice McReynolds,
dissent.
Mr. Justice Brandeis took no part in the consideration and decision of
the case.
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