Evening star., 1937-03-30

reasonable exercise of the police power
of the State. In reaching that con-
clusion the State court has invoked
principles long established by this
court in the application Of the four
teenth amendment. The State court
has refused to regard the decision
in the Adkins case as determinative
and has pointed to our decisions both
before and since that case as justify
ing it's position. We are of the opinion
that this ruling of the State court
demands on our part a re-eXamina-
tion of the Adkins case. The import
ance Of the question, in which many
States having similar laws are con-
cerned the close division by which the
decision in the Adkins case was
reached, and the economic conditions
which have supervened, and in the
light of which the reasonableness Of
| the exercise of the protective power
| of the State must be considered, make
it not only appropriate, but we think
imperative, that in deciding the pres
ent case the subject should receive
fresh consideration
The history of the litigation Of this
question may be briefly stated The
minimum wage statute of Washing
ton was enacted over % years ago.
Prior to the decision in the instant
case it had twice been held valid by
the Supreme Court of the State. Lar
sen VS.. Rice, 100 Washington 642;
Spokane Hotel Co. vs. Younger, 113
Washington 359. The Washington
statute is essentially the same as that
enacted in oregon in the same year.
Laws of 1913 (Oregon) chapter g.
The validity of the latter act was sus-
tanned by the Supreme Court of
Oregon in Stettler VS.. O'Hara, SO Ore
gon 519, and Simpson vs. O'Hara, 10
Oregon 261. These cases, after re-
argument, were affirmed here by an
equally divided court, in 1917. 243
U. S. 629. The law Of Oregon thus
continued in effect. The District of
Columbia minimum wage law 40
statute $500 was enacted in 1918. The
statute was sustained by the Supreme
Court of the District in the Adkins
case. Upon appeal the Court of Ap-
peals of the District first affirmed that
ruling but on rehearing reversed it and
the case came before this court in 1923.
The Judgment of the Court of APP
peals holding the act invalid was
affirmed, but with Chief Justice Taft
Mr.. Justice Holmes and Mr.. Justice
Sanford dissenting, and Mr.. Justice
Brandeis taking no part. The dis
senting opinions took the ground that
the decision was at variance with
the principles which this court had
frequently announced and applied.
In 1925 and 1927, the similar mini
mum wage statutes of Arizona and
Arkansas were held invalid upon the
authority of the Adkins case. The
justices who had dissented in that
case bowed to the ruling and Mr..
Justice Brandeis dissented. Murphy
VS.. Sardeu, 269 U. S. $50; Donham VS..
West-NelSon Co., 273 U. S. 657. The
question did not come before us again
until the last term in the Morehead
case, as already noted. In that case,
briefs supporting the New York stat
ute were submitted by the States OF
Ohio, Connecticut. Illinois. Massa-
chusetts, New Hampshire, New Jersey
and Rhode Island. 298 U. S., p 6O4,
note Throughout this entire period
the Washington statute now under
consideration has been in force.
Constitutional Liberty
Is Subjected to Regulation.
The principle which must control
our decision is not in doubt. The con-
stitutional provision invoked is the due
process clause of the fourteenth
amendment governing the States, as
the due process clause invoked in the
Adkins case governed Congress. In
each case the violation alleged by those
attacking minimum wage regulation
for women is deprivation of freedom of
contract. What is this freedom? The
Constitution does not speak of freedom
of contract. It speaks of liberty and
prohibits the deprivation of liberty
without due process Of law In prohib-
iting that deprivation the Constitution
does not recognize an absolute and un-
comfortable liberty. Liberty in each Of
its phases has its history and connota-
ton. But the liberty safeguarded is
liberty in a social organization which
requires the protection of law against
the evils which menace the health,
safety, morals and welfare of the
r,aop1o Jihorfv ,1pdor Tho Tor ctit,,fi i'm
is thus necessarily subject to the re-
straints of due process, and regula-
ton which Is reasonable in relation to
its subject and is adopted in the in
terests of the community is due process.
This essential limitation of liberty
in general governs freedom of contract
in particular. More than Is years ago
we set forth the applicable principle in
these words, after referring to the cases
where the liberty guaranteed by the
fourteenth amendment had been
broadly described:
But 1t was recognized in the cases
cited, as in many others, that freedom
of contract is qualified and not an
absolute right. There is no absolute
freedom to do as one wills or to con-
tract as one chooses. The guaranty of
liberty does not withdraw from legis-
lative. supervision that wide depart
ment of activity which consists of the
making of contracts, or deny to govern
ment the power to provide restrictive
safeguards. Liberty implies the ab-
sence Of arbitrary restraint, not i'm
munity from reasonable regulations
and prohibitions imposed in the inter-
ests of the community" Chicago, Burl-
ington & Quincy r. R. Co. VS.. MCGUIRE,
PIG U. S. $40, 565.
Power Over Contracts Of
Employer and Worker Undeniabie.
This power under the Constitution
to restrict freedom of contract has had
| many illustrations. That it may be
exercised in the public interest with
respect to contracts between employer
and employe is undeniable. Thus
statutes have been sustained limiting
employment in underground mines
and smelters to eight hours a day