The opinion
WATKINS, Senior District Judge
(dissenting):
To me, at least, a strong argument can be made that the right to try to earn a living is a fundamental right, associated with the right to the pursuit of happiness. I am persuaded, however, that under currently existing law (although no really comparable case is cited) the courts would probably apply the rationality test to state legislation restricting the availability of employment opportunities. I am also painfully aware of the broad language in McGowan v. State, 366 U.S. 420, 425 , 81 S.Ct. 1101, 1105 , 6 L.Ed.2d 393, 399 , that:
“. . . A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
The majority conceive that support may be found for Section 105A in the following “three legitimate purposes” in that it:
1. “[Pjromotes a work product produced under safer working conditions.”
2. “[Ejnhances the social conditions of the state by reducing unemployment and encouraging helpers to obtain skilled training which will increase their marketability.”
*267 3. “[Pjromotes the welfare of the construction industry and the quality of the product” by encouraging apprentice training resulting in (a) more skilled all-round competence; (b) more skilled craftsmen able to work without close supervision; and (c) more skilled craftsmen able to adapt to changing work procedures.
While I recognize that the function of the court is not to weigh a statute’s effectiveness (James v. Strange, 407 U.S. 128, 133 , 92 S.Ct. 2027, 2030 , 32 L.Ed.2d 600, 606 ), its considerations “must be something more than an ingenious academic exercise in the conceivable.” United States v. Scrap, 412 U.S. 669, 688-689 , 93 S.Ct. 2405, 2416 , 37 L.Ed.2d 254, 270 . 1 I believe that the “conceptions” relied upon by the majority are, at the best, false pregnancies.
1. Safety.
(a) The Act itself, in addition to the absence of any reference to safety, contains self-destructive language with respect thereto.
(i) If safety is involved, why does the Act:
Not apply to public work jobs not exceeding $500,000;
Not apply to private construction, eight times greater than the covered public work.
If safety were a factor why does not the Act apply to all construction, protecting the construction workers, and the public (or private persons) using, or exposed to this “unsafe” construction.
(ii) The Commissioner of Labor and Industry testified that Section 105A 2 did not refer to safety, and that 105A was not needed for safety.
He further testified that helpers had been entirely satisfactory before the passage of 105A.
(iii) The Chief Construction Engineer and Inspector of Building Construction of the State of Maryland testified that he personally inspected 75% of building construction (other than schools), including pre- and post-105A construction, and public works under $500,000, and that the relative quality was “pretty uniform.”
2. Reduce unemployment and encourage skilled training.
The effect of the Act is to increase unemployment, or to force the helper to work as a laborer. The testimony was uncontradicted that the average age of helpers was 42 years, and that the average age of apprentices was 23. The testimony also established that while a person over 30 might become an apprentice, this was exceptional, and the effort was to “try to hold down” to preferably 24 years.
It also was established that at least in the Terrazzo, Marble and Tile setting trade, some work could be done only by helpers; that mechanics were not allowed to do this type of work.
It was also established that some helpers do become journeymen.
3. Welfare of the industry and quality of the product.
Before considering the three subdivisions of this concept, it would seem almost conclusive against its validity to point out that the first witness called by defendants, the Training Director of the Steamfitters’ Union, in response to a question as to whether he was familiar with Section 105A answered in the affirmative, and added that he was in favor of doing away with it.
*268 Considering the majority concepts in order:
Promoting the welfare of the construction industry and the quality of the product by encouraging apprentice training.
The Commissioner of Labor testified that there was no basis for believing that elimination of helpers will improve the quality of work in public projects.
As noted above, the Chief Building Inspector testified that the relative quality of work before and after 105A, and on public works not exceeding $500,000, was pretty uniform.
Despite the fallacy of the major premise of promoting welfare in the construction industry, and quality of the product, a brief consideration must be given to the alleged benefits of encouraging apprenticeship training.
(a) More skilled all-around competence.
Perhaps after four years the all-around competence of an apprentice may exceed that of a helper. However, the competence of a helper was satisfactory in all construction before 105A, and is still satisfactory on public works not in excess of $500,000, and on all private construction.
(b) More skilled craftsmen able to work without close supervision.
The evidence was undisputed that the helper works behind his mechanic and “is told what to do, and does it.” (Emphasis supplied). The apprentice watches the journeyman and tries to learn what he does and how. At least at first the apprentice does less work on the job than a helper.
(c) More skilled craftsmen able to adapt to changing work procedures.
There was no evidence, offered or suggested, that helpers were not at least adaptable to changes.
To me 105A unnecessarily and unfairly discriminates against helpers. It has no fair and substantial relation to the (undisclosed) object of the legislation, or even to the concepts sought to be conjured up by the majority.
I, therefore, respectfully dissent.
. See, also, Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 , cited in Kotch v. Pilot Commissioners, 330 U.S. 552, 557 , 67 S.Ct. 910, 912 , 91 L.Ed. 1093 , 1097 that a law is to be “tested by the language of the law there considered and the administration there shown.”
Railway Express v. New York, 336 U.S. 106, 110 , 69 S.Ct. 463, 465 , 93 L.Ed. 533 , 539:
“. . . It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. ...”
. He further testified that 105A was not a “Department Bill,” and that it was unfavorably reported by the Committee to which it had been referred.