Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1923-04-10
Supreme Bench Divides
Five to Three in Test
Case-COngress Act
Unconstitutional in
Fixing M in i m u m
Wages for Women
and Minor Girls in
Dis trict Columbia
Majority Findings
Based on Right of
Contract

Washington. April 9-wages can
not be fixed by law, the supreme
court. dividing five to three, held to-
day in case brought to test the
constitutionality of an act of con.
gross fixing minimum wages for
women and minor girls in the Dis
trict of Columbia.
The decision was delivered by JUS
tice Sutherland. Justices McKenna,
Van Devanter, McRcynolds and But
Ter joining with him. Chief Justice
Taft delivered a dissenting opinion
for himself and Justice Sanford.
while Justice Holmes read a dissent
ing opinion which followed in its
main features that Of Chief Justice
Taft. Justice Brandeis did not par
ticipate in the decision.
The majority of the court based its
| position broadly upon the right OF
| contract, insisting that while laws
could be enforced to regulate working
| conditions, the employer and the en-
ploye must be free Of restraint in de-
termining between themselves what
! wages are acceptable.
The minority commended that there
was no greater police power in con-
gress and the state legislatures to
regulate workign conditions than to
regulate wages and that as there had
been wide uniformity in holding that
working conditions could be pre-
. scribed by law-making bodies it fol.
lowed in their judgment that wages
were also proper subject for legis-
lation.
| Justice Sutherland pointed out that
the minimum wage law was at
tackled upon the ground that it au-
thorizes an unconstitutional inter-
ference with the freedom Of contract
included within the guarantees of the
! due process clause of the fifth
amendment" The right to contract
about ones affairs he stated. lis a
| part of the liberty of the individual
protected by this clause The fact,
he asserted, was Settled by the de-
cisions of this court and is no longer
/ open to question"
within this liberty are contracts
of employment of labor" the ma
jority opinion continued. I'm making
such contracts, generally speaking.
the parties have an equal right to
obtain from each other the best terms
they can as the result of private bar
gaining"
! Legislative authority to abridge
| the right of contract can be justified
Justice Sutherland stated. only-by
| the existence of exceptional circum-
l,.&o %
| the broad rule which had been sus-
tanned by the courts, he said, were
! statutes fixing rates and charges to
be exacted by business impressed
, with a public interest, those relating
to contracts for the performance OF
public work. those prescribing the
| character, methods and time for pay
ment of wages and those fixing hours
of labor.
The majority opinion criticized the'
opposition on the ground that 'the
price fixed by the board (set up to
administer its provisions). need have
no relation to the capacity of earn
| ing power of the employe, the num-
Der of hours which may happen to
constitute a days work. the char
acter of the place where the work is
to done, or the circumstances or
| surrounding of the employment"
1T is based wholly" the opposition
added. ION the opinion of the MEM
bers of the board and their advisors
| perhaps an average of their opinions.
if they do not agree-as to what will
be necessary to provide a living for
a woman. keep her in health and
preserve her morals" 't-'
Justice Sutherland said he was not
willing to concede that the wages a
woman received had ally direct bear
ing upon her morals. 's
What is sufficient to supply the
| necessary cost of living for a woman
worker and maintain her in good
health and protect her morals" he
added, lis obviously not a precise or
unraryipg sum-not even approx
mately So"
Pointing out that the minimum
, wage board had fixed different. mini
NUNS in different lines Of employ
| ment. the Justice declared that such
| action demonstrated the fatal uncer-
tainty of the act, an "infirmity
which. in our opinion. plainly exists"