Evening star. [volume] (Washington, D.C.) 1854-1972, 1923-04-10
Main Dissenting Opinion
In Minimum Wage Case
Chief Justice Taft and Justice Sanford
Uphold Statute---IndiuiduaI Dissent
by Justice Holmes.

Chief Justice Taft delivered dis
senting opinion i'll the minimum
wage case decision of the Supreme
Court yesterday, in which Mr.. Jus
tice Sanford concurred. Mr.. Justice
Holmes announced an individual dis
? sent The main dissenting opinion
follows. in part:
The boundary of the police power
beyond which it's exercise becomes
an invasion of the guaranty of lib
erty under the fifth and fourteenth
amendments to the Constitution is
not easy to mark" said the Chief
Justice Our court has been Ia
boriously engaged in pricking out a
line in successive cases. We must
be careful il seems to me, to follow
that line as we'll as we can and not
to depart from it by suggesting
distinction that is formal rather than
real.
legislatures in limiting freedom
of contract between emp!oye and
employer by minimum wage pro-
coed on the assumption that en-
ployes. in the class receiving least
pay, are not upon a full level OF
equality of choice with their en-
ployer and by their necessitous cir
CumStanCeS are prone To accept
They are peculiarly subject to the
overreaching of the harsh and greedy
employer. The evils OF the sweating
system and of the long hours and
low wages which are characteristic
of ii are well known. Now, agree
that it is Il diSputable question IN
the field of political economy how lar
statutory requirement of maximum
hours or minimum wages may be a
useful remedy for these evils, and
whether it may not make the case
Il n
it was before. But it is not the
function of this court to hold con-
Gressional acts invalid simply be-
cause they are passed to carry out
Heves to be unwise or unsound.
View of Legislatures.
legislatures which adopt a re
Quirement of maximum hours or min
imum wages may be presumed to be-
heve that when sweating employers
are prevented from paying unduly
low pages by positive law they VIII
continue their business, abating that
part of their profits which We're
wrung from the necessities OF then
employees, and will concede the better
terms required by the law; and that
while in individual cases hardship
may result the restriction Will inure
to the benefit of the general class of
employees in whose interest the law
is PASSED. and so to that OF the COM
munity at large.
The right of the Legislature under
the fifth and fourteenth amendne is
to limit the hours of employment on
the score OF the health of the employe,
it seems to me, has been firmly eStab-
liShed. AS to that one would think,
the line had been pricked out so that
1t has become a well formulated rule.
In Holden agt. Hardy, 1853 L. $, 500,
it was applied to miners and rested
on the unfavorable environment OF
-, 4
In Lochner agt. New York, 1873 L. 3,
As, it was held that restricting those
employed in bakeries to ten hours a
day was an arbitrary and invalid in
reference with the liberty of contract
secured by the fourteenth amendment
Then followed "A number of cases be-
ginning with Muller agt Oregon, 20S
u. s., 412, sustaining the validity of
limit on maximum hours of labor
for women to which | shall hereafter
allude and following these cases
came Bunting agt. Oregon, 243 L. S,
426. In that case this court sustained
n law limiting the hours of labor of
any person, whether man or woman.
working in any mill, factory or man
ufacturing establishment to ten hours
a day with proviso as to further
hours to which | shall hereafter ad-
vert. The law covered the whole field
of industrial employment. and GER
tainly covered the case of persons en-
Distinction i'm Work.
Yet the opinion in the Bunting
case does not mention the Lochner
case. No one can suggest any con-
Stitutional distinction between en-
ployment in Il bakery and one in
any other kind Of a manufacturing
establishment which should make a
limit of hours in the one invalid.
and the same limit in the other per-
missible. 1t is impossible for me
to reconcile the Bunting case and
the Lochner case and l have always
supposed that the LoChner case was
thus overruled sub silentio. Yet
the opinion of the court herein in
support of its conclusion quotes from
the opinion in the Lochner case as
one which has been sometimes dis
tinEuiShed but never overruled. Ger
tainly there was no attempt to dis
tinguiSh it in the Bunting case
However, the opinion herein does
not oVerrule the Bunting case in
express terms and therefore | as
sumo that the Conclus on in this
case rests on the distinction between
minimum of wages and d maximum
of hours in the limiting of liberty
to contract, | regret to be at var-
ance with the court as to the sub
stance of this distinction. In abso-
Lutte freedom of contract the one
term is as important as the other
for both enter equally into the con-
slderatlon given and received a re-