U.S. Supreme Court Adkins v. Children's Hosp., 261
U.S. 525 (1923) Adkins v. Children's
Hospital Nos. 795, 796 Argued March 14, 1923 Decided April 9, 1923 261
U.S. 525 APPEALS FROM THE COURT OF
APPEALS OF THE DISTRICT OF
COLUMBIA Syllabus 1. The Court of Appeals of the District of Columbia, while
constituted of two of the three Justices of that court and one
Justice of the Supreme Court of the District, affirmed decrees of
the latter court dismissing bills; thereafter, at the same term,
(the Supreme Court Justice having been replaced by the third
Justice of the Court of Appeals) it granted rehearings and reversed
the decrees, and, thereafter, on second appeals, it affirmed
decrees entered pursuant to the reversals. Held that
objections to the jurisdiction to grant the rehearings did not go
to the jurisdiction over the second appeals, and need not be
decided here upon review of the decrees of affirmance. P. 261 U. S.
543 .

															2. Every possible presumption stands in favor of an act of
Congress until overcome beyond rational doubt. P. 261 U. S.
544 .

															3. But when, in the exercise of the judicial authority to
ascertain and declare the law in a given case, it is clear and
indubitable that an act of Congress conflicts with the
Constitution, it is the duty of the Court so to declare, and to
enforce the Constitution. Id. 4. This is not to exercise a power to review and nullify an act
of Congress, for no such power exists; it is simply a necessary
concomitant of the power to hear and dispose of a case or
controversy properly before the court, to the determination of
which must be brought the test and measure of the law. Id. 5. That the right to contract about one's affairs is part of the
liberty of the individual protected by the Fifth Amendment, is
settled by repeated decisions of this Court. P. 261 U. S.
545 .

															6. Within this liberty are contracts of employment of labor. In
making these, generally speaking, the parties have equal right to
obtain from each other the best terms they can by private
bargaining. Id. Page 261 U. S. 526 7. Legislative abridgment of this freedom can only be justified
by the existence of exceptional circumstances. P. 261 U. S.
546 .

															8. Review of former decisions concerning interferences with
liberty of contract, by

															(a) Statutes fixing the rates and charges of businesses affected
by a public interest. P. 261 U. S.
546 .

															(b) Statutes relating to the performance of contracts for public
work. P. 261 U. S.
547 .

															(c) Statutes prescribing the character, methods and time for
payment of wages. Id. (d) Statutes fixing hours of labor. Id. 9. Legislation fixing hours or conditions of work may properly
take into account the physical differences between men and women;
but, in view of the equality of legal status, now established in
this country, the doctrine that women of mature age require, or may
be subjected to, restrictions upon their liberty of contract which
could not lawfully be imposed on men in similar circumstances, must
be rejected. P. 261 U. S.
552 .

															10. The limited legislative authority to regulate hours of labor
in special occupations, on the ground of health, affords no support
to a wage-fixing law -- the two subjects are essentially different.
P. 261 U. S.
553 .

															11. The Minimum Wage Act of Sept.19, 1918, c. 174, 40 Stat. 960,
in assuming to authorize the fixing of minimum wage standards for
adult women, in any occupation in the District of Columbia, such
standards to be based wholly upon what a board and its advisers may
find to be an adequate wage to meet the necessary cost of living
for women workers in each particular calling and to maintain them
in good health and protect their morals, is an unconstitutional
interference with the liberty of contract. P. 261 U. S.
554 .

															284 Fed. 613, affirmed.

															APPEALS from decrees of the Court of Appeals of the District of
Columbia, affirming two decrees, entered, on mandate from that
court, by the Supreme Court of the District, permanently enjoining
the appellants from enforcing orders fixing minimum wages under the
District of Columbia Minimum Wage Act. Page 261 U. S. 539 MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

															The question presented for determination by these appeals is the
constitutionality of the Act of September 19, 1918, providing for
the fixing of minimum wages for women and children in the District
of Columbia. 40 Stat. 960, c. 174.

															The act provides for a board of three members, to be
constituted, as far as practicable, so as to be equally
representative Page 261 U. S. 540 of employers, employees and the public. The board is authorized
to have public hearings, at which persons interested in the matter
being investigated may appear and testify, to administer oaths,
issue subpoenas requiring the attendance of witnesses and
production of books, etc., and to make rules and regulations for
carrying the act into effect.

															By § 8, the board is authorized --

															"(1) To investigate and ascertain the wages of women and minors
in the different occupations in which they are employed in the
District of Columbia; (2) to examine, through any member or
authorized representative, any book, payroll or other record of any
employer of women or minors that, in any way appertains to or has a
bearing upon the question of wages of any such women or minors, and
(3) to require from such employer full and true statements of the
wages paid to all women and minors in his employment."

															And by § 9,

															"to ascertain and declare, in the manner hereinafter provided,
the following things: (a), Standards of minimum wages for women in
any occupation within the District of Columbia, and what wages are
inadequate to supply the necessary cost of living to any such women
workers to maintain them in good health and to protect their
morals, and (b), standards of minimum wages for minors in any
occupation within the District of Columbia, and what wages are
unreasonably low for any such minor workers."

															The act then provides (§ 10) that, if the board, after
investigation, is of opinion that any substantial number of women
workers in any occupation are receiving wages inadequate to supply
them with the necessary cost of living, maintain them in health and
protect their morals, a conference may be called to consider and
inquire into and report on the subject investigated, the conference
to be equally representative of employers and employees in Page 261 U. S. 541 such occupation and of the public, and to include one or more
members of the board.

															The conference is required to make and transmit to the board a
report including, among other things,

															"recommendations as to standards of minimum wages for women
workers in the occupation under inquiry and as to what wages are
inadequate to supply the necessary cost of living to women workers
in such occupation and to maintain them in health and to protect
their morals."

															§ 11.

															The board is authorized (§ 12) to consider and review these
recommendations and to approve or disapprove any or all of them. If
it approve any recommendations, it must give public notice of its
intention and hold a public hearing at which the persons interested
will be heard. After such hearing, the board is authorized to make
such order as to it may appear necessary to carry into effect the
recommendations, and to require all employers in the occupation
affected to comply therewith. It is made unlawful for any such
employer to violate in this regard any provision of the order or to
employ any woman worker at lower wages than are thereby
permitted.

															There is a provision (§ 13) under which the board may issue a
special license to a woman whose earning capacity "has been
impaired by age or otherwise," authorizing her employment at less
than the minimum wages fixed under the act.

															All questions of fact (§ 17) are to be determined by the board,
from whose decision there is no appeal; but an appeal is allowed on
questions of law.

															Any violation of the act (§ 18) by an employer or his agent or
by corporate agents is declared to be a misdemeanor, punishable by
fine and imprisonment.

															Finally, after some further provisions not necessary to be
stated, it is declared (§ 23) that the purposes of the act are

															"to protect the women and minors of the District Page 261 U. S. 542 from conditions detrimental to their health and morals,
resulting from wages which are inadequate to maintain decent
standards of living, and the Act in each of its provisions and in
its entirety shall be interpreted to effectuate these
purposes."

															The appellee in the first case is a corporation maintaining a
hospital for children in the District. It employs a large number of
women in various capacities, with whom it had agreed upon rates of
wages and compensation satisfactory to such employees, but which in
some instances were less than the minimum wage fixed by an order of
the board made in pursuance of the act. The women with whom
appellee had so contracted were all of full age and under no legal
disability. The instant suit was brought by the appellee in the
Supreme Court of the District to restrain the board from enforcing
or attempting to enforce its order on the ground that the same was
in contravention of the Constitution, and particularly the due
process clause of the Fifth Amendment.

															In the second case, the appellee, a woman twenty-one years of
age, was employed by the Congress Hall Hotel Company as an elevator
operator, at a salary of $35 per month and two meals a day. She
alleges that the work was light and healthful, the hours short,
with surroundings clean and moral, and that she was anxious to
continue it for the compensation she was receiving, and that she
did not earn more. Her services were satisfactory to the Hotel
Company, and it would have been glad to retain her but was obliged
to dispense with her services by reason of the order of the board
and on account of the penalties prescribed by the act. The wages
received by this appellee were the best she was able to obtain for
any work she was capable of performing, and the enforcement of the
order, she alleges, deprived her of such employment and wages. She
further averred that she could not secure any other position at
which she could make a living, with Page 261 U. S. 543 as good physical and moral surroundings, and earn as good wages,
and that she was desirous of continuing and would continue the
employment but for the order of the board. An injunction was prayed
as in the other case.

															The Supreme Court of the District denied the injunction and
dismissed the bill in each case. Upon appeal, the Court of Appeals,
by a majority, first affirmed and subsequently, on a rehearing,
reversed the trial court. Upon the first argument, a justice of the
District Supreme Court was called in to take the place of one of
the Appellate Court justices, who was ill. Application for
rehearing was made and, by the court as thus constituted, was
denied. Subsequently, and during the term, a rehearing was granted
by an order concurred in by two of the Appellate Court justices,
one being the justice whose place on the prior occasion had been
filled by the Supreme Court member. Upon the rehearing thus
granted, the Court of Appeals, rejecting the first opinion, held
the act in question to be unconstitutional and reversed the decrees
of the trial court. Thereupon the cases were remanded, and the
trial court entered decrees in pursuance of the mandate, declaring
the act in question to be unconstitutional and granting permanent
injunctions. Appeals to the Court of Appeals followed, and the
decrees of the trial court were affirmed. It is from these final
decrees that the cases come here.

															Upon this state of facts the jurisdiction of the lower court to
grant a rehearing, after first denying it, is challenged. We do not
deem it necessary to consider the matter farther than to say that
we are here dealing with the second appeals, while the proceedings
complained of occurred upon the first appeals. That the lower court
could properly entertain the second appeals and decide the cases
does not admit of doubt, and this the appellants virtually conceded
by having themselves invoked the jurisdiction. See Rooker v.
Fidelity Trust Co., ante, 261 U. S. 114 . Page 261 U. S. 544 We come then, at once, to the substantive question involved.

															The judicial duty of passing upon the constitutionality of an
act of Congress is one of great gravity and delicacy. The statute
here in question has successfully borne the scrutiny of the
legislative branch of the government, which, by enacting it, has
affirmed its validity, and that determination must be given great
weight. This Court, by an unbroken line of decisions from Chief
Justice Marshall to the present day, has steadily adhered to the
rule that every possible presumption is in favor of the validity of
an act of Congress until overcome beyond rational doubt. But if, by
clear and indubitable demonstration, a statute be opposed to the
Constitution, we have no choice but to say so. The Constitution, by
its own terms, is the supreme law of the land, emanating from the
people, the repository of ultimate sovereignty under our form of
government. A congressional statute, on the other hand, is the act
of an agency of this sovereign authority, and, if it conflict with
the Constitution, must fall; for that which is not supreme must
yield to that which is. To hold it invalid (if it be invalid) is a
plain exercise of the judicial power -- that power vested in courts
to enable them to administer justice according to law. From the
authority to ascertain and determine the law in a given case, there
necessarily results, in case of conflict, the duty to declare and
enforce the rule of the supreme law and reject that of an inferior
act of legislation which, transcending the Constitution, is of no
effect and binding on no one. This is not the exercise of a
substantive power to review and nullify acts of Congress, for no
such substantive power exists. It is simply a necessary concomitant
of the power to hear and dispose of a case or controversy properly
before the court, to the determination of which must be brought the
test and measure of the law. Page 261 U. S. 545 The statute now under consideration is attacked upon the ground
that it authorizes an unconstitutional interference with the
freedom of contract included within the guaranties of the due
process clause of the Fifth Amendment. That the right to contract
about one's affairs is a part of the liberty of the individual
protected by this clause, is settled by the decisions of this Court
and is no longer open to question. Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S. 591 ; New York Life Insurance Co. v. Dodge, 246 U.
S. 357 , 246 U. S.
373 -374; Coppage v. Kansas, 236 U. S.
1 , 236 U. S. 10 , 236 U. S. 14 ; Adair v. United States, 208 U. S. 161 ; Lochner v. New York, 198 U. S. 45 ; Butchers' Union Co. v. Crescent City Co., 111 U.
S. 746 ; Muller v. Oregon, 208 U.
S. 412 , 208 U. S. 421 .
Within this liberty are contracts of employment of labor. In 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 bargaining.

															In Adair v. United States, supra, Mr. Justice Harlan
(pp. 208 U. S. 174 , 208 U. S.
175 ), speaking for the Court, said:

															"The right of a person to sell his labor upon such terms as he
deems proper is, in its essence, the same as the right of the
purchaser of labor to prescribe the conditions upon which he will
accept such labor from the person offering to sell. . . . In all
such particulars, the employer and employee have equality of right,
and any legislation that disturbs that equality is an arbitrary
interference with the liberty of contract which no government can
legally justify in a free land."

															In Coppage v. Kansas, supra, (p. 236 U. S. 14 ),
this Court, speaking through Mr. Justice Pitney, said:

															"Included in the right of personal liberty and the right of
private property -- partaking of the nature of each -- is the right
to make contracts for the acquisition of property. Chief among such
contracts is that of personal employment, by which labor and other
services are exchanged for money or other forms of property. If
this Page 261 U. S. 546 right be struck down or arbitrarily interfered with, there is a
substantial impairment of liberty in the long-established
constitutional sense. The right is as essential to the laborer as
to the capitalist, to the poor as to the rich; for the vast
majority of persons have no other honest way to begin to acquire
property, save by working for money."

															"An interference with this liberty so serious as that now under
consideration, and so disturbing of equality of right, must be
deemed to be arbitrary unless it be supportable as a reasonable
exercise of the police power of the State."

															There is, of course, no such thing as absolute freedom of
contract. It is subject to a great variety of restraints. But
freedom of contract is, nevertheless, the general rule, and
restraint the exception, and the exercise of legislative authority
to abridge it can be justified only by the existence of exceptional
circumstances. Whether these circumstances exist in the present
case constitutes the question to be answered. It will be helpful to
this end to review some of the decisions where the interference has
been upheld and consider the grounds upon which they rest.

															(1) Those dealing with statutes fixing rates and charges to
be exacted by businesses impressed with a public interest. There are many cases, but it is sufficient to cite Munn v.
Illinois, 94 U. S. 113 . The
power here rests upon the ground that, where property is devoted to
a public use, the owner thereby, in effect, grants to the public an
interest in the use which may be controlled by the public for the
common good to the extent of the interest thus created. It is upon
this theory that these statutes have been upheld and, it may be
noted in passing, so upheld even in respect of their incidental and
injurious or destructive effect upon preexisting contracts. See
Louisville & Nashville R.R. Co. v. Mottley, 219 U.
S. 467 . In the case at bar, the statute does not depend
upon Page 261 U. S. 547 the existence of a public interest in any business to be
affected, and this class of cases may be laid aside as
inapplicable.

															(2) Statutes relating to contracts for the performance of
public work. Atkin v. Kansas, 191 U.
S. 207 ; Heim v. McCall, 239 U.
S. 175 ; Ellis v. United States, 206 U.
S. 246 . These cases sustain such statutes as depending
not upon the right to condition private contracts, but upon the
right of the government to prescribe the conditions upon which it
will permit work of a public character to be done for it, or, in
the case of a State, for its municipalities. We may, therefore, in
like manner, dismiss these decisions from consideration as
inapplicable.

															(3) Statutes prescribing the character, methods and time for
payment of wages. Under this head may be included McLean
v. Arkansas, 211 U. S. 539 ,
sustaining a state statute requiring coal to be measured for
payment of miners' wages before screening; Knoxville Iron Co.
v. Harbison, 183 U. S. 13 ,
sustaining a Tennessee statute requiring the redemption in cash of
store orders issued in payment of wages; Erie R.R. Co. v.
Williams, 233 U. S. 685 ,
upholding a statute regulating the time within which wages shall be
paid to employees in certain specified industries, and other cases
sustaining statutes of like import and effect. In none of the
statutes thus sustained was the liberty of employer or employee to
fix the amount of wages the one was willing to pay and the other
willing to receive interfered with. Their tendency and purpose was
to prevent unfair and perhaps fraudulent methods in the payment of
wages, and in no sense can they be said to be, or to furnish a
precedent for, wage-fixing statutes.

															(4) Statutes fixing hours of labor. It is upon this
class that the greatest emphasis is laid in argument, and
therefore, and because such cases approach most nearly the line of
principle applicable to the statute here involved, we shall
consider them more at length. In some instances, Page 261 U. S. 548 the statute limited the hours of labor for men in certain
occupations, and in others it was confined in its application to
women. No statute has thus far been brought to the attention of
this Court which by its terms, applied to all occupations. In Holden v. Hardy, 169 U. S. 366 , the
Court considered an act of the Utah legislature, restricting the
hours of labor in mines and smelters. This statute was sustained as
a legitimate exercise of the police power on the ground that the
legislature had determined that these particular employments, when
too long pursued, were injurious to the health of the employees,
and that, as there were reasonable grounds for supporting this
determination on the part of the legislature, its decision in that
respect was beyond the reviewing power of the federal courts.

															That this constituted the basis of the decision is emphasized by
the subsequent decision in Lochner v. New York, 198 U. S. 45 ,
reviewing a state statute which restricted the employment of all
persons in bakeries to ten hours in anyone day. The Court referred
to Holden v. Hardy, supra, and, declaring it to be
inapplicable, held the statute unconstitutional as an unreasonable,
unnecessary and arbitrary interference with the liberty of
contract, and therefore void under the Constitution.

															Mr. Justice Peckham, speaking for the Court (p. 198 U. S. 56 ),
said:

															"It must, of course, be conceded that there is a limit to the
valid exercise of the police power by the State. There is no
dispute concerning this general proposition. Otherwise, the
Fourteenth Amendment would have no efficacy, and the legislatures
of the States would have unbounded power, and it would be enough to
say that any piece of legislation was enacted to conserve the
morals, the health or the safety of the people; such legislation
would be valid, no matter how absolutely without foundation the
claim might be. The claim of the police power Page 261 U. S. 549 would be a mere pretext -- become another and delusive name for
the supreme sovereignty of the State to be exercised free from
constitutional restraint."

															And again (pp. 198 U. S.
57 -58):

															"It is a question of which of two powers or rights shall prevail
-- the power of the State to legislate or the right of the
individual to liberty of person and freedom of contract. The mere
assertion that the subject relates though but in a remote degree to
the public health does not necessarily render the enactment valid.
The act must have a more direct relation, as a means to an end, and
the end itself must be appropriate and legitimate, before an act
can be held to be valid which interferes with the general right of
an individual to be free in his person and in his power to contract
in relation to his own labor."

															Coming then directly to the statute (p. 198 U. S. 58 ),
the Court said:

															"We think the limit of the police power has been reached and
passed in this case. There is, in our judgment, no reasonable
foundation for holding this to be necessary or appropriate as a
health law to safeguard the public health or the health of the
individuals who are following the trade of a baker. If this statute
be valid, and if, therefore, a proper case is made out in which to
deny the right of an individual, sui juris, as employer or
employee, to make contracts for the labor of the latter under the
protection of the provisions of the Federal Constitution, there
would seem to be no length to which legislation of this nature
might not go."

															And, after pointing out the unreasonable range to which the
principle of the statute might be extended, the Court said (p. 198 U. S.
60 ):

															"It is also urged, pursuing the same line of argument, that it
is to the interest of the State that its population should be
strong and robust, and therefore any legislation which may be said
to tend to make people healthy must Page 261 U. S. 550 be valid as health laws, enacted under the police power. If this
be a valid argument and a justification for this kind of
legislation, it follows that the protection of the Federal
Constitution from undue interference with liberty of person and
freedom of contract is visionary, wherever the law is sought to be
justified as a valid exercise of the police power. Scarcely any law
but might find shelter under such assumptions, and conduct,
properly so called, as well as contract, would come under the
restrictive sway of the legislature."

															And further (p. 198 U. S.
61 ):

															"Statutes of the nature of that under review, limiting the hours
in which grown and intelligent men may labor to earn their living,
are mere meddlesome interferences with the rights of the
individual, and they are not saved from condemnation by the claim
that they are passed in the exercise of the police power and upon
the subject of the health of the individual whose rights are
interfered with, unless there be some fair ground, reasonable in
and of itself, to say that there is material danger to the public
health or to the health of the employes, if the hours of labor are
not curtailed."

															Subsequent cases in this Court have been distinguished from that
decision, but the principles therein stated have never been
disapproved.

															In Bunting v. Oregon, 243 U. S. 426 , a
state statute forbidding the employment of any person in any mill,
factory or manufacturing establishment more than ten hours in any
one day, and providing payment for overtime not exceeding three
hours in any one day at the rate of time and a half of the regular
wage, was sustained on the ground that, since the state legislature
and State Supreme Court had found such a law necessary for the
preservation of the health of employees in these industries, this
Court would accept their judgment, in the absence of facts to
support the contrary conclusion. The law was attacked Page 261 U. S. 551 on the ground that it constituted an attempt to fix wages, but
that contention was rejected and the law sustained as a reasonable
regulation of hours of service. Wilson v. New, 243 U. S. 332 ,
involved the validity of the so-called Adamson Law, which
established an eight-hour day for employees of interstate carriers
for which it fixed a scale of minimum wages with proportionate
increases for overtime, to be enforced, however, only for a limited
period. The act was sustained primarily upon the ground that it was
a regulation of a business charged with a public interest. The
Court, speaking through the Chief Justice, pointed out that
regarding

															"the private right and private interest, as contradistinguished
from the public interest, the power exists between the parties, the
employers and employees to agree as to a standard of wages free
from legislative interference,"

															but that this did not affect the power to deal with the matter
with a view to protect the public right, and then said (p. 243 U. S.
353 ):

															"And this emphasizes that there is no question here of purely
private right since the law is concerned only with those who are
engaged in a business charged with a public interest where the
subject dealt with as to all the parties is one involved in that
business and which we have seen comes under the control of the
right to regulate to the extent that the power to do so is
appropriate or relevant to the business regulated."

															Moreover, in sustaining the wage feature of the law, emphasis
was put upon the fact (p. 243 U. S. 345 )
that it was in this respect temporary, "leaving the employers and
employees free as to the subject of wages to govern their relations
by their own agreements after the specified time." The act was not
only temporary in this respect, but it was passed to meet a sudden
and great emergency. This feature of the law was sustained
principally because the parties, for the time being, could not or
would not agree. Here, they are forbidden to agree. Page 261 U. S. 552 The same principle was applied in the Rent Cases ( Block v. Hirsh, 256 U. S. 135 , and Marcus Brown Holding Co. v. Feldman, 256 U.
S. 170 ), where this Court sustained the legislative
power to fix rents as between landlord and tenant upon the ground
that the operation of the statutes was temporary to tide over an
emergency, and that the circumstances were such as to clothe "the
letting of buildings . . . with a public interest so great as to
justify regulation by law." The Court said (p. 256 U. S.
157 ):

															"The regulation is put and justified only as a temporary measure
[citing Wilson v. New, supra ]. A limit in time, to tide
over a passing trouble, well may justify a law that could not be
upheld as a permanent change."

															In a subsequent case, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 416 ,
this Court, after saying

															"We are in danger of forgetting that a strong public desire to
improve the public condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of paying for
the change,"

															pointed out that the Rent Cases dealt with laws
intended to meet a temporary emergency and "went to the verge of
the law."

															In addition to the cases cited above, there are the decisions of
this Court dealing with laws especially relating to hours of labor
for women: Muller v. Oregon, 208 U.
S. 412 ; Riley v. Massachusetts, 232 U.
S. 671 ; Miller v. Wilson, 236 U.
S. 373 ; Bosley v. McLaughlin, 236 U.
S. 385 .

															In the Muller case, the validity of an Oregon statute,
forbidding the employment of any female in certain industries more
than ten hours during anyone day was upheld. The decision proceeded
upon the theory that the difference between the sexes may justify a
different rule respecting hours of labor in the case of women than
in the case of men. It is pointed out that these consist in
differences of physical structure, especially in respect Page 261 U. S. 553 of the maternal functions, and also in the fact that,
historically, woman has always been dependent upon man, who has
established his control by superior physical strength. The cases of Riley, Miller, and Bosley follow in this respect
the Muller case. But the ancient inequality of the sexes,
otherwise than physical, as suggested in the Muller case
(p. 208 U. S. 421 )
has continued "with diminishing intensity." In view of the great --
not to say revolutionary -- changes which have taken place since
that utterance, in the contractual, political and civil status of
women, culminating in the Nineteenth Amendment, it is not
unreasonable to say that these differences have now come almost, if
not quite, to the vanishing point. In this aspect of the matter,
while the physical differences must be recognized in appropriate
cases, and legislation fixing hours or conditions of work may
properly take them into account, we cannot accept the doctrine that
women of mature age, sui juris, require or may be
subjected to restrictions upon their liberty of contract which
could not lawfully be imposed in the case of men under similar
circumstances. To do so would be to ignore all the implications to
be drawn from the present day trend of legislation, as well as that
of common thought and usage, by which woman is accorded
emancipation from the old doctrine that she must be given special
protection or be subjected to special restraint in her contractual
and civil relationships. In passing, it may be noted that the
instant statute applies in the case of a woman employer contracting
with a woman employee as it does when the former is a man.

															The essential characteristics of the statute now under
consideration, which differentiate it from the laws fixing hours of
labor, will be made to appear as we proceed. It is sufficient now
to point out that the latter, as well as the statutes mentioned
under paragraph (3), deal with incidents of the employment having
no necessary effect upon Page 261 U. S. 554 the heart of the contract, that is, the amount of wages to be
paid and received. A law forbidding work to continue beyond a given
number of hours leaves the parties free to contract about wages,
and thereby equalize whatever additional burdens may be imposed
upon the employer as a result of the restrictions as to hours, by
an adjustment in respect of the amount of wages. Enough has been
said to show that the authority to fix hours of labor cannot be
exercised except in respect of those occupations where work of long
continued duration is detrimental to health. This Court has been
careful, in every case where the question has been raised, to place
its decision upon this limited authority of the legislature to
regulate hours of labor and to disclaim any purpose to uphold the
legislation as fixing wages, thus recognizing an essential
difference between the two. It seems plain that these decisions
afford no real support for any form of law establishing minimum
wages.

															If now, in the light furnished by the foregoing exceptions to
the general rule forbidding legislative interference with freedom
of contract, we examine and analyze the statute in question, we
shall see that it differs from them in every material respect. It
is not a law dealing with any business charged with a public
interest or with public work, or to meet and tide over a temporary
emergency. It has nothing to do with the character, methods or
periods of wage payments. It does not prescribe hours of labor or
conditions under which labor is to be done. It is not for the
protection of persons under legal disability or for the prevention
of fraud. It is simply and exclusively a price-fixing law, confined
to adult women (for we are not now considering the provisions
relating to minors), who are legally as capable of contracting for
themselves as men. It forbids two parties having lawful capacity --
under penalties as to the employer -- to freely contract with one
another in respect of the price for Page 261 U. S. 555 which one shall render service to the other in a purely private
employment where both are willing, perhaps anxious, to agree, even
though the consequence may be to oblige one to surrender a
desirable engagement and the other to dispense with the services of
a desirable employee. * The price fixed
by the board need have no relation to the capacity or earning power
of the employee, the number of hours which may happen to constitute
the day's work, the character of the place where the work is to be
done, or the circumstances or surroundings of the employment; and,
while it has no other basis to support its validity than the
assumed necessities of the employee, it takes no account of any
independent resources she may have. It is based wholly on the
opinions of the members of the board and their advisers -- perhaps
an average of their opinions, if they do not precisely agree -- as
to what will be necessary to provide a living for a woman, keep her
in health and preserve her morals. It applies to any and every
occupation in the District, without regard to its nature or the
character of the work.

															The standard furnished by the statute for the guidance of the
board is so vague as to be impossible of practical application with
any reasonable degree of accuracy. What is sufficient to supply the
necessary cost of living for a woman worker and maintain her in
good health and protect her morals is obviously not a precise or
unvarying sum -- not even approximately so. The amount will depend
upon a variety of circumstances: the individual temperament, habits
of thrift, care, ability to buy necessaries intelligently, and
whether the woman live alone or with her family. To those who
practice economy, a given sum will afford comfort, while to those
of contrary habit the same sum will be wholly inadequate. The
cooperative economics of the family group are not taken into
account Page 261 U. S. 556 though they constitute an important consideration in estimating
the cost of living, for it is obvious that the individual expense
will be less in the case of a member of a family than in the case
of one living alone. The relation between earnings and morals is
not capable of standardization. It cannot be shown that well paid
women safeguard their morals more carefully than those who are
poorly paid. Morality rests upon other considerations than wages,
and there is, certainly, no such prevalent connection between the
two as to justify a broad attempt to adjust the latter with
reference to the former. As a means of safeguarding morals the
attempted classification in our opinion, is without reasonable
basis. No distinction can be made between women who work for others
and those who do not; nor is there ground for distinction between
women and men, for, certainly, if women require a minimum wage to
preserve their morals men require it to preserve their honesty. For
these reasons, and others which might be stated, the inquiry in
respect of the necessary cost of living and of the income necessary
to preserve health and morals, presents an individual, and not a
composite, question, and must be answered for each individual
considered by herself, and not by a general formula prescribed by a
statutory bureau.

															This uncertainty of the statutory standard is demonstrated by a
consideration of certain orders of the board already made. These
orders fix the sum to be paid to a woman employed in a place where
food is served or in a mercantile establishment, at $16.50 per
week; in a printing establishment, at $15.50 per week, and in a
laundry, at $15 per week, with a provision reducing this to $9 in
the case of a beginner. If a woman employed to serve food requires
a minimum of $16.50 per week, it is hard to understand how the same
woman working in a printing establishment or in a laundry is to get
on with an income lessened by from $1 to $7.50 per week. The board
probably Page 261 U. S. 557 found it impossible to follow the indefinite standard of the
statute, and brought other and different factors into the problem,
and this goes far in the direction of demonstrating the fatal
uncertainty of the act, an infirmity which, in our opinion, plainly
exists.

															The law takes account of the necessities of only one party to
the contract. It ignores the necessities of the employer by
compelling him to pay not less than a certain sum not only whether
the employee is capable of earning it, but irrespective of the
ability of his business to sustain the burden, generously leaving
him, of course, the privilege of abandoning his business as an
alternative for going on at a loss. Within the limits of the
minimum sum, he is precluded, under penalty of fine and
imprisonment, from adjusting compensation to the differing merits
of his employees. It compels him to pay at least the sum fixed in
any event, because the employee needs it, but requires no service
of equivalent value from the employee. It therefore undertakes to
solve but one-half of the problem. The other half is the
establishment of a corresponding standard of efficiency, and this
forms no part of the policy of the legislation, although in
practice the former half without the latter must lead to ultimate
failure, in accordance with the inexorable law that no one can
continue indefinitely to take out more than he puts in without
ultimately exhausting the supply. The law is not confined to the
great and powerful employers, but embraces those whose bargaining
power may be as weak as that of the employee. It takes no account
of periods of stress and business depression, of crippling losses,
which may leave the employer himself without adequate means of
livelihood. To the extent that the sum fixed exceeds the fair value
of the services rendered, it amounts to a compulsory exaction from
the employer for the support of a partially indigent person, for
whose condition there Page 261 U. S. 558 rests upon him no peculiar responsibility, and therefore, in
effect, arbitrarily shifts to his shoulders a burden which, if it
belongs to anybody, belongs to society as a whole.

															The feature of this statute which, perhaps more than any other,
puts upon it the stamp of invalidity is that it exacts from the
employer an arbitrary payment for a purpose and upon a basis having
no causal connection with his business, or the contract or the work
the employee engages to do. The declared basis, as already pointed
out, is not the value of the service rendered, but the extraneous
circumstance that the employee needs to get a prescribed sum of
money. to insure her subsistence, health and morals. The ethical
right of every worker, man or woman, to a living wage may be
conceded. One of the declared and important purposes of trade
organizations is to secure it. And with that principle, and with
every legitimate effort to realize it in fact, no one can quarrel;
but the fallacy of the proposed method of attaining it is that it
assumes that every employer is bound at all events to furnish it.
The moral requirement implicit in every contract of employment, viz., that the amount to be paid and the service to be
rendered shall bear to each other some relation of just
equivalence, is completely ignored. The necessities of the employee
are alone considered, and these arise outside of the employment,
are the same when there is no employment, and as great in one
occupation as in another. Certainly the employer, by paying a fair
equivalent for the service rendered, though not sufficient to
support the employee, has neither caused nor contributed to her
poverty. On the contrary, to the extent of what he pays, he has
relieved it. In principle, there can be no difference between the
case of selling labor and the case of selling goods. If one goes to
the butcher, the baker or grocer to buy food, he is morally
entitled to obtain the worth of his money, but he is not entitled
to more. If what he gets is worth what he pays, he is not justified
in demanding Page 261 U. S. 559 more simply because he needs more, and the shopkeeper, having
dealt fairly and honestly in that transaction, is not concerned in
any peculiar sense with the question of his customer's necessities.
Should a statute undertake to vest in a commission power to
determine the quantity of food necessary for individual support and
require the shopkeeper, if he sell to the individual at all, to
furnish that quantity at not more than a fixed maximum, it would
undoubtedly fall before the constitutional test. The fallacy of any
argument in support of the validity of such a statute would be
quickly exposed. The argument in support of that now being
considered is equally fallacious, though the weakness of it may not
be so plain. A statute requiring an employer to pay in money, to
pay at prescribed and regular intervals, to pay the value of the
services rendered, even to pay with fair relation to the extent of
the benefit obtained from the service, would be understandable. But
a statute which prescribes payment without regard to any of these
things and solely with relation to circumstances apart from the
contract of employment, the business affected by it and the work
done under it, is so clearly the product of a naked, arbitrary
exercise of power that it cannot be allowed to stand under the
Constitution of the United States.

															We are asked, upon the one hand, to consider the fact that
several States have adopted similar statutes, and we are invited,
upon the other hand, to give weight to the fact that three times as
many States, presumably as well informed and as anxious to promote
the health and morals of their people, have refrained from enacting
such legislation. We have also been furnished with a large number
of printed opinions approving the policy of the minimum wage, and
our own reading has disclosed a large number to the contrary. These
are all proper enough for the consideration of the lawmaking
bodies, since their tendency is to establish the desirability or
undesirability of the Page 261 U. S. 560 legislation; but they reflect no legitimate light upon the
question of its validity, and that is what we are called upon to
decide. The elucidation of that question cannot be aided by
counting heads.

															It is said that great benefits have resulted from the operation
of such statutes, not alone in the District of Columbia, but in the
several States where they have been in force. A mass of reports,
opinions of special observers and students of the subject, and the
like has been brought before us in support of this statement, all
of which we have found interesting but only mildly persuasive. That
the earnings of women now are greater than they were formerly, and
that conditions affecting women have become better in other
respects, may be conceded, but convincing indications of the
logical relation of these desirable changes to the law in question
are significantly lacking. They may be, and quite probably are, due
to other causes. We cannot close our eyes to the notorious fact
that earnings everywhere in all occupations have greatly increased
-- not alone in States where the minimum wage law obtains, but in
the country generally -- quite as much or more among men as among
women and in occupations outside the reach of the law as in those
governed by it. No real test of the economic value of the law can
be had during periods of maximum employment, when general causes
keep wages up to or above the minimum; that will come in periods of
depression and struggle for employment, when the efficient will be
employed at the minimum rate, while the less capable may not be
employed at all.

															Finally, it may be said that if, in the interest of the public
welfare, the police power may be invoked to justify the fixing of a
minimum wage, it may, when the public welfare is thought to require
it, be invoked to justify a maximum wage. The power to fix high
wages connotes, by like course of reasoning, the power to fix low
wages. If, in the face of the guaranties of the Fifth Page 261 U. S. 561 Amendment, this form of legislation shall be legally justified,
the field for the operation of the police power will have been
widened to a great and dangerous degree. If, for example, in the
opinion of future lawmakers, wages in the building trades shall
become so high as to preclude people of ordinary means from
building and owning homes, an authority which sustains the minimum
wage will be invoked to support a maximum wage for building
laborers and artisans, and the same argument which has been here
urged to strip the employer of his constitutional liberty of
contract in one direction will be utilized to strip the employee of
his constitutional liberty of contract in the opposite direction. A
wrong decision does not end with itself: it is a precedent, and,
with the swing of sentiment, its bad influence may run from one
extremity of the arc to the other.

															It has been said that legislation of the kind now under review
is required in the interest of social justice, for whose ends
freedom of contract may lawfully be subjected to restraint. The
liberty of the individual to do as he pleases, even in innocent
matters, is not absolute. It must frequently yield to the common
good, and the line beyond which the power of interference may not
be pressed is neither definite nor unalterable, but may be made to
move, within limits not well defined, with changing need and
circumstance. Any attempt to fix a rigid boundary would be unwise,
as well as futile. But, nevertheless, there are limits to the
power, and when these have been passed, it becomes the plain duty
of the courts in the proper exercise of their authority to so
declare. To sustain the individual freedom of action contemplated
by the Constitution is not to strike down the common good, but to
exalt it, for surely the good of society as a whole cannot be
better served than by the preservation against arbitrary restraint
of the liberties of its constituent members. Page 261 U. S. 562 It follows from what has been said that the act in question
passes the limit prescribed by the Constitution, and, accordingly,
the decrees of the court below are Affirmed. MR. JUSTICE BRANDEIS took no part in the consideration or
decision of these cases.

															* I This is the exact situation in the Lyons case, as
is shown by the statement in the first part of this opinion.

															MR. CHIEF JUSTICE TAFT, dissenting.

															I regret much to differ from the Court in these cases.

															The boundary of the police power beyond which its exercise
becomes an invasion of the guaranty of liberty under the Fifth and
Fourteenth Amendments to the Constitution is not easy to mark. Our
Court has been laboriously engaged in pricking out a line in
successive cases. We must be careful, it seems to me, to follow
that line as well as we can and not to depart from it by suggesting
a distinction that is formal, rather than real.

															Legislatures, in limiting freedom of contract between employee
and employer by a minimum wage, proceed on the assumption that
employees, in the class receiving least pay, are not upon a full
level of equality of choice with their employer, and, in their
necessitous circumstances, are prone to accept pretty much anything
that is offered. 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 it are
well known. Now I agree that it is a disputable question in the
field of political economy how far a statutory requirement of
maximum hours or minimum wages may be a useful remedy for these
evils, and whether it may not make the case of the oppressed
employee worse than it was before. But it is not the function of
this Court to hold congressional acts invalid simply because they
are passed to carry out economic views which the Court believes to
be unwise or unsound. Page 261 U. S. 563 Legislatures which adopt a requirement of maximum hours or
minimum wages may be presumed to believe that, when sweating
employers are prevented from paying unduly low wages by positive
law, they will continue their business, abating that part of their
profits, which were wrung from the necessities of their employees,
and will concede the better terms required by the law, and that,
while in individual cases hardship may result, the restriction will
enure to the benefit of the general class of employees in whose
interest the law is passed, and so to that of the community at
large.

															The right of the legislature under the Fifth and Fourteenth
Amendments to limit the hours of employment on the score of the
health of the employee, it seems to me, has been firmly
established. As to that, one would think, the line had been pricked
out so that it has become a well formulated rule. In Holden v.
Hardy, 169 U. S. 366 , it
was applied to miners and rested on the unfavorable environment of
employment in mining and smelting. In Lochner v. New York, 198 U. S. 45 , it
was held that restricting those employed in bakeries to ten hours a
day was an arbitrary and invalid interference with the liberty of
contract secured by the Fourteenth Amendment. Then followed a
number of cases, beginning with Muller v. Oregon, 208 U. S. 412 ,
sustaining the validity of a limit on maximum hours of labor for
women, to which I shall hereafter allude, and, following these
cases, came Bunting v. Oregon, 243 U.
S. 426 . In that case, this Court sustained a law
limiting the hours of labor of any person, whether man or woman,
working in any mill, factory or manufacturing establishment to ten
hours a day with a proviso as to further hours to which I shall
hereafter advert. The law covered the whole field of industrial
employment, and certainly covered the case of persons employed in
bakeries. Yet the opinion in the Bunting case does not
mention the Lochner case. No one can Page 261 U. S. 564 suggest any constitutional distinction between employment in a
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 permissible. It is impossible for me to
reconcile the Bunting case and the Lochner case,
and I 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 distinguished
but never overruled. Certainly there was no attempt to distinguish
it in the Bunting case.

															However, the opinion herein does not overrule the Bunting case in express terms, and therefore I assume that
the conclusion in this case rests on the distinction between a
minimum of wages and a maximum of hours in the limiting of liberty
to contract. I regret to be at variance with the Court as to the
substance of this distinction. In absolute freedom of contract, the
one term is as important as the other, for both enter equally into
the consideration given and received, a restriction as to one is
not any greater, in essence, than the other, and is of the same
kind. One is the multiplier, and the other the multiplicand.

															If it be said that long hours of labor have a more direct effect
upon the health of the employee than the low wage, there is very
respectable authority from close observers, disclosed in the record
and in the literature on the subject quoted at length in the
briefs, that they are equally harmful in this regard. Congress took
this view, and we cannot say it was not warranted in so doing.

															With deference to the very able opinion of the Court and my
brethren who concur in it, it appears to me to exaggerate the
importance of the wage term of the contract of employment as more
inviolate than its other terms. Its conclusion seems influenced by
the fear that the Page 261 U. S. 565 concession of the power to impose a minimum wage must carry with
it a concession of the power to fix a maximum wage. This, I submit,
is a non sequitur. A line of distinction like the one
under discussion in this case is, as the opinion elsewhere admits,
a matter of degree and practical experience, and not of pure logic.
Certainly the wide difference between prescribing a minimum wage
and a maximum wage could, as a matter of degree and experience, be
easily affirmed.

															Moreover, there are decisions by this Court which have sustained
legislative limitations in respect to the wage term in contracts of
employment. In McLean v. Arkansas, 211 U.
S. 539 , it was held within legislative power to make it
unlawful to estimate the graduated .pay of miners by weight after
screening the coal. In Knoxville Iron Co. v. Harbison, 183 U. S. 13 , it
was held that store orders issued for wages must be redeemable in
cash. In Patterson v. Bark Eudora, 190 U.
S. 169 , a law forbidding the payment of wages in advance
was held valid. A like case is Strathearn S.S. Co. v.
Dillon, 252 U. S. 348 .
While these did not impose a minimum on wages, they did take away
from the employee the freedom to agree as to how they should be
fixed, in what medium they should be paid, and when they should be
paid, all features that might affect the amount or the mode of
enjoyment of them. The first two really rested on the advantage the
employer had in dealing with the employee. The third was deemed a
proper curtailment of a sailor's right of contract in his own
interest because of his proneness to squander his wages in port
before sailing. In Bunting v. Oregon, supra, employees in
a mill, factory or manufacturing establishment were required, if
they worked over ten hours a day, to accept for the three
additional hours permitted not less than fifty percent. more than
their usual wage. This was sustained as a mild penalty imposed on
the employer to enforce the limitation as to hours; but it
necessarily Page 261 U. S. 566 curtailed the employee's freedom to contract to work for the
wages he saw fit to accept during those three hours. I do not feel,
therefore, that, either on the basis of reason, experience or
authority, the boundary of the police power should be drawn to
include maximum hours and exclude a minimum wage.

															Without, however, expressing an opinion that a minimum wage
limitation can be enacted for adult men, it is enough to say that
the case before us involves only the application of the minimum
wage to women. If I am right in thinking that the legislature can
find as much support in experience for the view that a sweating
wage has as great and as direct a tendency to bring about an injury
to the health and morals of workers, as for the view that long
hours injure their health, then I respectfully submit that Muller v. Oregon, 208 U. S. 412 ,
controls this case. The law which was there sustained forbade the
employment of any female in any mechanical establishment or factory
or laundry for more than ten hours. This covered a pretty wide
field in women's work, and it would not seem that any sound
distinction between that case and this can be built up on the fact
that the law before us applies to all occupations of women, with
power in the board to make certain exceptions. Mr. Justice Brewer,
who spoke for the Court in Muller v. Oregon, based its
conclusion on the natural limit to women's physical strength and
the likelihood that long hours would therefore injure her health,
and we have had since a series of cases which may be said to have
established a rule of decision. Riley v. Massachusetts, 232 U. S. 671 ; Miller v. Wilson, 236 U. S. 373 ; Bosley v. McLaughlin, 236 U. S. 385 . The
cases covered restrictions in wide and varying fields of
employment, and in the later cases, it will be found that the
objection to the particular law was based not on the ground that it
had general application, but because it left out some
employments. Page 261 U. S. 567 I am not sure from a reading of the opinion whether the Court
thinks the authority of Muller v. Oregon is shaken by the
adoption of the Nineteenth Amendment. The Nineteenth Amendment did
not change the physical strength or limitations of women upon which
the decision in Muller v. Oregon rests. The Amendment did
give women political power, and makes more certain that legislative
provisions for their protection will be in accord with their
interests as they see them. But I don't think we are warranted in
varying constitutional construction based on physical differences
between men and women, because of the Amendment.

															But for my inability to agree with some general observations in
the forcible opinion of MR. JUSTICE HOLMES who follows me, I should
be silent and merely record my concurrence in what he says. It is
perhaps wiser for me, however, in a case of this importance,
separately to give my reasons for dissenting.

															I am authorized to say that MR. JUSTICE SANFORD concurs in this
opinion.

															MR. JUSTICE HOLMES, dissenting.

															The question in this case is the broad one, whether Congress can
establish minimum rates of wages for women in the District of
Columbia with due provision for special circumstances, or whether
we must say that Congress has no power to meddle with the matter at
all. To me, notwithstanding the deference due to the prevailing
judgment of the Court, the power of Congress seems absolutely free
from doubt. The end, to remove conditions leading to ill health,
immorality and the deterioration of the race, no one would deny to
be within the scope of constitutional legislation. The means are
means that have the approval of Congress, of many States, and of
those governments from which we have learned our greatest Page 261 U. S. 568 lessons. When so many intelligent persons, who have studied the
matter more than any of us can, have thought that the means are
effective and are worth the price, it seems to me impossible to
deny that the belief reasonably may be held by reasonable men. If
the law encountered no other objection than that the means bore no
relation to the end or that they cost too much, I do not suppose
that anyone would venture to say that it was bad. I agree, of
course, that a law answering the foregoing requirements might be
invalidated by specific provisions of the Constitution. For
instance, it might take private property without just compensation.
But in the present instance, the only objection that can be urged
is found within the vague contours of the Fifth Amendment,
prohibiting the depriving any person of liberty or property without
due process of law. To that I turn.

															The earlier decisions upon the same words in the Fourteenth
Amendment began within our memory and went no farther than an
unpretentious assertion of the liberty to follow the ordinary
callings. Later, that innocuous generality was expanded into the
dogma, Liberty of Contract. Contract is not specially mentioned in
the text that we have to construe. It is merely an example of doing
what you want to do, embodied in the word liberty. But pretty much
all law consists in forbidding men to do some things that they want
to do, and contract is no more exempt from law than other acts.
Without enumerating all the restrictive laws that have been upheld,
I will mention a few that seem to me to have interfered with
liberty of contract quite as seriously and directly as the one
before us. Usury laws prohibit contracts by which a man receives
more than so much interest for the money that he lends. Statutes of
frauds restrict many contracts to certain forms. Some Sunday laws
prohibit practically all contracts during one-seventh of our whole
life. Insurance rates may be regulated. German
Alliance Insurance Co. Page 261 U. S. 569 v. Lewis, 233 U. S. 389 . (I
concurred in that decision without regard to the public interest
with which insurance was said to be clothed. It seemed to me that
the principle was general.) Contracts may be forced upon the
companies. National Union Fire Insurance Co. v. Wanberg, 260 U. S. 71 .
Employers of miners may be required to pay for coal by weight
before screening. McLean v. Arkansas, 211 U.
S. 539 . Employers generally may be required to redeem in
cash store orders accepted by their employees in payment. Knoxville Iron Co. v. Harbison, 183 U. S.
13 . Payment of sailors in advance may be forbidden. Patterson v. Bark Eudora, 190 U.
S. 169 . The size of a loaf of bread may be established. Schmidinger v. Chicago, 226 U. S. 578 . The
responsibility of employers to their employees may be profoundly
modified. New York Central R.R. Co. v. White, 243 U.
S. 188 . Arizona Employers' Liability Cases, 250 U. S. 400 .
Finally women's hours of labor may be fixed; Muller v.
Oregon, 208 U. S. 412 ; Riley v. Massachusetts, 232 U. S. 671 , 232 U. S. 679 ; Hawley v. Walker, 232 U.S. 718; Miller v. Wilson, 236 U. S. 373 ; Bosley v. McLaughlin, 236 U. S. 385 , and
the principle was extended to men with the allowance of a limited
overtime to be paid for "at the rate of time and one-half of the
regular wage," in Bunting v. Oregon, 243 U.
S. 426 .

															I confess that I do not understand the principle on which the
power to fix a minimum for the wages of women can be denied by
those who admit the power to fix a maximum for their hours of work.
I fully assent to the proposition that here, as elsewhere, the
distinctions of the law are distinctions of degree, but I perceive
no difference in the kind or degree of interference with liberty,
the only matter with which we have any concern, between the one
case and the other. The bargain is equally affected whichever half
you regulate. Muller v. Oregon, I take it, is as good law
today as it was in 1908. It will Page 261 U. S. 570 need more than the Nineteenth Amendment to convince me that
there are no differences between men and women, or that legislation
cannot take those differences into account. I should not hesitate
to take them into account if I thought it necessary to sustain this
act. Quong Wing v. Kirkendall, 223 U. S.
59 , 223 U. S. 63 .
But after Bunting v. Oregon, 243 U.
S. 426 , I had supposed that it was not necessary, and
that Lochner v. New York, 198 U. S.
45 , would be allowed a deserved repose.

															This statute does not compel anybody to pay anything. It simply
forbids employment at rates below those fixed as the minimum
requirement of health and right living. It is safe to assume that
women will not be employed at even the lowest wages allowed unless
they earn them, or unless the employer's business can sustain the
burden. In short, the law, in its character and operation, is like
hundreds of so-called police laws that have been upheld. I see no
greater objection to using a Board to apply the standard fixed by
the act than there is to the other commissions with which we have
become familiar, or than there is to the requirement of a license
in other cases. The fact that the statute warrants classification,
which, like all classifications, may bear hard upon some
individuals, or in exceptional cases, notwithstanding the power
given to the Board to issue a special license, is no greater
infirmity than is incident to all law. But the ground on which the
law is held to fail is fundamental, and therefore it is unnecessary
to consider matters of detail.

															The criterion of constitutionality is not whether we believe the
law to be for the public good. We certainly cannot be prepared to
deny that a reasonable man reasonably might have that belief in
view of the legislation of Great Britain, Victoria and a number of
the States of this Union. The belief is fortified by a very
remarkable collection of documents submitted on behalf of the
appellants, material here, I conceive, only as showing that the Page 261 U. S. 571 belief reasonably may be held. In Australia, the power to fix a
minimum for wages in the case of industrial disputes extending
beyond the limits of any one State was given to a Court, and its
President wrote a most interesting account of its operation. 29
Harv.Law Rev. 13. If a legislature should adopt what he thinks the
doctrine of modern economists of all schools, that "freedom of
contract is a misnomer as applied to a contract between an employer
and an ordinary individual employee," ibid. 25, I could
not pronounce an opinion with which I agree impossible to be
entertained by reasonable men. If the same legislature should
accept his further opinion that industrial peace was best attained
by the device of a Court having the above powers, I should not feel
myself able to contradict it, or to deny that the end justified
restrictive legislation quite as adequately as beliefs concerning
Sunday or exploded theories about usury. I should have my doubts,
as I have them about this statute -- but they would be whether the
bill that has to be paid for every gain, although hidden as
interstitial detriments, was not greater than the gain was worth: a
matter that it is not for me to decide.

															I am of opinion that the statute is valid, and that the decree
should be reversed.