Peterson v. Hagan

Finley, J.

(dissenting) — Chapter 294, §3(1), Laws of 1959, requires that employers pay time and one half for all work (a) over eight hours per day, or (b) over forty hours per week. Section 12 of the act, however, provides that as to any employer and employment (involving interstate commerce) which are subject to the Federal Fair Labor Standards Act ( 29 U.S.C.A., § 201 , et seq.), compliance with the Federal Act shall be deemed compliance with the requirements of the state act. The Federal Act requires payment of time and one half only for work in excess of forty hours per week. Thus, an employer whose business does not involve interstate commerce and, therefore, is not covered by the Federal Act is required to pay at the overtime rate for all work over eight hours per day, whereas the employer whose business, because of its involvement with interstate commerce, comes within the coverage of the Federal Act need not pay overtime, irrespective of the number of hours his employees work per day, so long as he does not work his employees more than forty hours per week.

Because of this result, the majority opinion holds that classification-wise the state act violates the state and federal constitutional prohibitions against the denial of equal protection. I do not agree.

Neither the majority opinion nor the briefs of any of the parties make any reference to the case of Packer Corporation v. Utah (1932), 285 U. S. 105 , 76 L. Ed. 643 , 52 S. Ct. 273 , 79 A. L. R. 546. The state of Utah enacted a statute (Laws of Utah (1921), chapter 145, §2, as amended by *68 chapter 52, § 2, Utah Laws of 1923 and chapter 92, Utah Laws of 1929) providing:

“It shall be a misdemeanor for any person, company, or corporation, to display on any bill board, street car sign, street car, placard, or on any other object or place of display, any advertisement of cigarettes, cigarette papers, cigars, chewing tobacco, or smoking tobacco, or any disguise or substitute of either, . . . provided that nothing herein shall be construed to prohibit the advertising of cigarettes, cigarette papers, chewing tobacco, smoking tobacco, or any disguise or substitute of either in any newspaper, magazine, or periodical printed or circulating in the State of Utah.” (Italics mine.)

The italicized proviso was added in 1929, because the supreme court of Utah, in State v. Salt Lake Tribune Publishing Co. (1926), 68 Utah 187 , 249 Pac. 474 , 48 A. L. R. 553, had held the basic statute unconstitutional as violative of the federal commerce clause. The statute, as amended, was attacked on the ground that the exclusion of newspapers, periodicals, etc., from the coverage of the act constituted arbitrary classification. The United States Supreme Court rejected the argument that the classification was arbitrary and constitutionally invalid, saying:

“The classification alleged to be arbitrary was made in order to comply with the requirement of the Federal Constitution as interpreted and applied by the highest court of the State. Action by a State taken to observe one prohibition of the Constitution does not entail the violation of another.” (Italics mine.) Packer Corporation v. Utah, supra.

Thus, if in the instant case the exclusion of interstate commerce type employment from the coverage of the state act was necessary in order to observe the prohibition against state regulation of interstate commerce implicit in the federal commerce clause, the classification, contrary to the views of the majority, is not arbitrary, but rather is perfectly proper; i.e., constitutional. The majority, however, assert that it was not necessary for the state legislature to establish the particular classification. They point to a provision contained in the Federal Fair Labor Standards Act ( 29 U.S.C.A., § 218 ) which provides that compliance with *69 the Federal Act shall not excuse noncompliance with state laws “establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum work week established under this chapter . . . ” The majority reason that because of this provision in the Federal Act the state legislature could have subjected interstate employers covered by the Federal Act to the overtime pay requirements of § 3 of the state act, and that, because the state legislature failed to do this, its classification is arbitrary; i.e., a denial of equal protection and hence constitutionally invalid.

I cannot agree with the disposition of this issue by the majority for two reasons. In the first place, I am not convinced that the state legislature (notwithstanding § 218 of the Federal Act) could have made all of the requirements of § 3 of the state act applicable to interstate commerce type employment. The reason becomes clear and, I believe, unanswerable upon a closer examination of § 218 of the Federal Act. The section provides that, with respect to employers engaged in interstate commerce, a state may establish (1) a minimum wage higher than the minimum wage established by the Federal Act, or (2) a maximum work week lower than the maximum work week prescribed by the Federal Act. But § 3 of the state act, while imposing a sanction against work in excess of forty hours per week the same as the Federal Act, in addition prescribes a maximum work day of eight hours. Since there is no mention in § 218 of the Federal Act of a maximum work day (as opposed to a maximum work week), how can it be said that the section gives permission to the states to prescribe a maximum work day for employees engaged in such interstate commerce type employment as is covered by the Federal Act? Section 218 permits imposition by the states of a more restrictive maximum work week. There is no permission whatsoever as to the imposition by a state of a maximum work day. The majority have cited no authority, and I have found none, demonstrating that the state legislature, pursuant to § 218 of the Federal Act, could have required those employers covered by the Federal Act (interstate *70 commerce employment) to comply with this maximum eight hour work day requirement of the state act. The principle announced in Packer Corporation v. Utah, supra, thus supports the action of our state legislature in not attempting to impose upon interstate commerce type employment the maximum eight hour work day feature of § 3 of the state act. This should demonstrate clearly, without further comment, the error in the logic strongly relied upon by the majority in concluding that the state act is unconstitutional. However, the position taken by the majority is, I think, untenable for a second and equally significant and convincing reason.

Assuming very tentatively and solely for the purpose of argument that somehow or other, by virtue of § 218 of the Federal Act, the state legislature might have made all the provisions of § 3 of the state act applicable to interstate commerce type employment, nothing expressed in the Federal Act requires the legislature to do so. Very clearly, the Federal Act could only be permissive — never mandatory. And yet, under the holding of the majority, in order for a state to enact constitutionally valid wage hour legislation, it must either (1) make its act applicable, alike or equally, to both interstate and intrastate commerce, or (2) enact legislation applicable solely to intrastate commerce, but containing only such wage hour requirements as are identical with those contained in the Federal Act. According to the majority opinion, solely because of the permission it deems has been granted to the states by § 218 of the Federal Act, a state cannot establish wage hour requirements applicable only to purely local employment which are in any way different from the requirements of the Federal Act. To do so, says the majority opinion, is to create an arbitrary classification in violation of the equal protection provisions of the state and federal constitutions.

I recognize that the Federal Congress in the exercise of its commerce clause powers may expressly permit what in effect amounts to state regulation of interstate commerce. In re Rahrer (1890), 140 U. S. 545 , 35 L. Ed. 572 , 11 S. Ct. 865 . However, there is no indication in the Rahrer case that the Federal Congress by enacting legislation permitting *71 state regulation can inhibit, diminish, or circumscribe a state’s police powers respecting wholly intrastate (local) commercial activity. Let us “render unto Caesar what is his,” no less, but no more. The dichotomy of state and federal authority, or the sovereign prerogatives delineated by the commerce clause may have fallen into disuse or, perhaps, disrepute upon occasion, but I venture to assert it is worth remembering. Implicit in this dichotomy is the idea or consideration that intrastate (local) business should be regulated by local or state government. And just as properly, logically and constitutionally, interstate (nonlocal) business should be regulated by the national government.

On the other hand, there is the idea or consideration that intrastate (local) business should not be regulated more burdensomely than interstate (nonlocal) business. Inherently, this idea is engaging and certainly not lacking in merit. This, of course, is the idea emphasized by the majority in the instant case. Implemented by careful research, citation of authorities, and scholarly writing, the idea moves dramatically in the direction of invalidity of the state act. At the same time, however, it cuts cleanly across the first consideration above noted; for, carried to the extreme, it renders the validity of state regulation of intrastate commerce dependent wholly upon what the national government has done with respect to interstate commerce.

Thus, dependent upon which of these two ideas or considerations is emphasized or evaluated more significantly, state action such as the legislation before the court in the instant case may be said either to violate or not to violate the underlying constitutional prohibitions against denial of equal protection. Of course, where a state is powerless to enact regulatory legislation applicable to both intrastate and interstate commercial activity, its exclusion of interstate commerce from the coverage of such legislation is reasonable, and the resultant classification is not arbitrary. Packer Corporation v. Utah, supra. However, to say, as do the majority respecting § 218 of the Federal Act, that the picture is changed where the Federal Congress has seen fit to allow state regulation of interstate commerce is to subordinate the notion *72 that state governments, on the one hand, and the federal government, on the other hand, each has its respective sphere of sovereignty concerning the regulation of commercial activity to the idea or consideration that intrastate business should not be regulated more burdensomely than interstate business. This, I believe, as mentioned above, concedes that, notwithstanding the underlying concept of dual sovereignty, the validity of state regulation of intrastate commerce is wholly dependent upon what the federal government chooses to do with respect to interstate commerce. I am simply not willing to make such a drastic concession. In short, I am convinced that, even if § 218 of the Federal Act somehow can be read to permit application of the eight hour work day facet of § 3 of the state act, our legislature’s decision not to act upon or implement this permission is not unreasonable or arbitrary. I do not believe that the Federal Congress, by opening the door to state regulation of a certain facet of interstate commerce, has the power to compel the state legislatures to curtail or to abandon their traditional sovereign power and function as to the regulation of purely local commercial activity. I have found no authority, and none is cited by the majority, in support of the proposition that Congress has such power. The majority opinion is a painstakingly, careful and scholarly effort which supports and justifies the result reached in the best traditions of legal methodology. But syllogistic phenomena are not infallible, nor the be all and end all of the judicial process. 1 What the federal government may do directly as to interstate commerce, or what it may permit the states to do, cannot, or at least should not, constitutionally restrict, inhibit, or even destroy state police power and authority respecting intrastate commerce.

*73 In brief summary: I am convinced that, notwithstanding § 218 of the Federal Fair Labor Standards Act, that the Washington legislature could properly and constitutionally exclude from the coverage of the eight hour maximum work day provision of § 3 of the state act those employers covered by the Federal Act (1) for the reason that § 218 of the Federal Act, carefully read, does not permit this portion of the state act to be applied to such interstate employers, and (2) for the reason that, even if § 218 of the Federal Act did purport to permit such state action, the state’s decision not to act upon or implement such permission is not unreasonable or arbitrary. Lastly, I cannot agree that Chapter 294, Laws of 1959, is unconstitutional for any of the other reasons stated by the majority. Consequently, I dissent.

Rosellini and Hunter, JJ., concur with Finley, J.

In The Common Law, p. 1, Justice Holmes stated: “The [actual] life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which law shall be governed.”