Appellants Brief — West Coast Hotel Co. v. Parrish

INDEX

SUBJECT INDEX

«

Statement of the Case

Specification of Assigned Errors Relied Upon

- Summary of Argument

Argument

Appendix

i

il . INDEX

TABLE OF CASES CITED

Page

. Adkins vs. Children’s Hospital, 201 U.S. 525 3, 6,9, 19

Buchanan vs. Warley, 245 U.S. 60 25

Capital Traction Company m Hoff. 174AU.S. 1 rie

Donham vs. West-Nelson Manufacturing Company, 273 U.S.057 12

Howard vs. Illinois Central Railroad Company, 207 U.S. 453 21

Larsen vs. Rice, 100 Wash. 642, 171 Pac. 1037 18, 19

Meyer vs. Nebraska, 202 U.S. 399 24

Minnesota vs. Barber, 136 U.S. 313 25

Morehead vs. New York ex rel. Tipalio, 80 L. Ed. 921 12, 22

Murphy vs. Sardell, 269 U. 5. 530 1]

Parrish vs. West Coast Hotel Company, 85 Wash. Dec. 517, 55 Pac.

(Qnd) 1083. , i)

Shoemaker vs. United States, 147 U.S. 28% . 20

Spokane Hotel Co. vs. Younger. 113 Wash. 359, 19.4 Pac. 595 19

Stoutenburgh vs. Hennick, 129 U.S. 141 21

wa INDEX

STATUTES CITED

/ , Page

i

Constitution of the United States, Article XIV. Section 1 . §

Crawford and Moses’ Digest of Statutes of Arkansas (1921), Sec.

7108 and See. 7111 :; Den

Laws of Arizona, 1923, chap. 3, sec. 1 Resaeote ean

Laws of Washington, 1913, Chap. 171 (Remington’s Revised Stat-

ules of Washington, 1932, sections 7623-7640 incl. ) 3, 8, 27

Statutes at Large, vol. 40, p. 960 (Chap. 174 Comp. Stat. sec.

3421 oa, Fed. Stat. Anno. Supp. 1919 p. 234) 13

lili

REFERENCE TO OFFICIAL REPORT OF THE

OPINION DELIVERED IN THE

COURT BELOW.

Ernest Parrish and Elsie Parrish, his wife,

Appellants,. vs. West Coast Hotel Company, Re-

spondent, 85 Wash. Dee. 517, 55 P. (2nd) 1083.

_ IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1936

No. 293

WEST COAST HOTEL COMPANY, a cor-

poration,

Appellant,

US.

| ERNEST PARRISH and ELSIE PARRISH,

his wife,

Appellees.

APPEAL FROM THE SUPREME COURT OF

WASHINGTON.

BRIEF OF APPELLANT

STATEMENT OF THE CASE.

Elsie Parrish, an adult woman, was employed

intermittently from August of 1933 to May of 1935

9 Ps

oat

as a chamber maid in: the hotel of the appellant at

Wenatchee, Washington. * During this period Elsie

Parrish received compensation at a rate which was

less than that established hy the Industrial Welfare

Committee under the terms of Chapter 174 of the

Laws of 1913. This statute is quoted in full in the

appendix hereto. ’

Under this statute it is specifically provided as

follows:

“See. 2. It shall be’ unlawful to employ

women or minors in any industry or occupation

within the State of Washington under con-

ditions of labor detrimental to their health or

morals; and it shall be unlawful to employ

women -workers in any industry within the

State of Washington at wages which are not

adequate for their maintenance. :

‘See. 3. There is hereby created’ a com-

mission to be known as the ‘Industrial Welfare

Jommission’ for the State of Washington, to

establish such standards of wages and con?

ditions of labor for women and minors em-

ployed within the State of Washington, as shall

be held hereunder to be reasonable and not

detrimental to health and morals, and which ,

shall be sufficient for the decent maintenance

of women.’’ (Subsequent legislation abolished

the. Industrial ‘Welfare Commission and sub-

stituted an Industrial Welfare Committee con-

sisting of certain designated state officers to

act in the place of the original commission. )

Upon the termination of her employment in

May of 1935 Elsie Parrish made demand upon her

' 3

employer for the difference between the wages she

had been paid and the wages which would have been

due under the terms.of the aboye described Act.

This sum, $216.19, not being paid, Elsie Parrish

(being joined by her husband to comply wit!. the

community property laws of the State of Wash--

ington) brought suit against her employer, the ap-

pellant, under ‘the provision of section 18 of the

above described Aet, which provides that where

less than the legal minimum wage has been paid to

an employee she may sue for and recover the differ-

ence, together with attorney’s fees and costs. In

addition to the difference between the minimum

wage and the wage actually paid the suit was for

the sum of $17.00 which was admitted due by the

emplover, but the acceptance of which had been

refused by Elsie Parrish for the reason that it was

tendered to her in. full of all obligation of the em

.

ployer to her.

Upon the case heing submitted to the Superior

Court of the State of Washington for Chelan

“County the Hon. W. O. Parr, judge of said court,

ruled that the case of Adkins vs. Children’s Hos-

pital, 261 U, 8. 525, 43S. Ct. 394, 24 AL L. R. 1238,

was decisive as to the constitutionality of Chapter

174 of the Laws of 1913, of the State of Washing-

ton, and that no recovery could be had by Elsie

- toh lite

4

Parrish, except for the balance of wages admittedly

_—due her, since the statute under which she sought

relief was unconstitutiqual under the, Fourteenth

‘Ame ndmeut of the Constitution of the United

States.

Elsie Parrish and her husband appealed from

this decision to the Supreme Court of the State of

Washington, where it was held, in the decision be-

fore cited, that the statute, Chapter 174.of the Laws

of 1913, was not unconstitutional as being in viola-

tion of the Fourteenth Amendment to the Constitu-

tion of the United States, and that she was, there-

fore, entitled to the relief for which she prayed.

From this decision of the Supreme Court of the

State of Washington upholding the constitutionality

of this statute, this appeal was brought to this court,

after having exhausted all remedies within the ju-

dicial system of the State of Washington.

(The printed record ‘was not available ,at the

time it became necessary to print this brief to file

it within the time limits of the rules of court. For

this reason, and because of the simplicity of the

facts in the case and the lack of controversy over

the facts, reference to the printed record is omitted.)

Pea

4)

SPECIFICATION OF ASSIGNED ERRORS

RELIED UPON.

1. That the statute of the State of Washington,

to-wit, Chapter 174 of the Laws of 1913, page 602,

Remington’s Revised Statutes 1932, section 7623-

7640, inclusive, entitled ‘‘Minimum Wages for Wo-

men,’? approved Mareh 24,1913, is unconstitutional

and void and repugnant to section 1, Article XIV

of the Constitution of the United States insofar as

it attempts to regulate the wages of adult women,

Without due process of law, in that it deprives

appellant of the right to contract.

2. That the statute of the State of Washington,

to-wit, Chapter 174 of the Laws of 1913, page 602,

Remington’s Revised Statutes 1932, section 76233-

1640, inclusive, entitled ‘‘Minimum Wages for Wo-

men,” approved March 24, 1913, is unconstitutional

and void as repugnant to section 1, Article XIV of

the Constitution of the United States, in that it

impairs the freedom of contract of the appellant.

3. That the Supreme Court ‘of the State of

Washington erred in ruling that the aforesaid stat-

ute of the State of Washington was a valid.or con-

stitutional regulation.

6

SUMMARY OF ARGUMENT.

THis Case Dors Not Brine to THE Court a NEW

. Port or Law But, On tHE Contrary, ResuB-

MITS A QuEsTION Wuicu Has. BEEN REPEATEDLY

DrECIDED IN FAVOR OF THE CONTENTIONS OF THE

APPELLANT.

(a) The disputed statute, Chapter 174 of the

Laws of. Washington of 1913, as indicated by its

title, was passed by the legislature of Washington

tn the year 1913 prior to any consideration of the

principles of minimum wage legislation by the Su-

preme Court of the United States.

(b) Adkins vs. € 'hildren’s Hospital, 261 U.S.

525, 43 S.Ct. 394, 24 A, L. R. 1238, and companion

cases decided subsequent to the enactment of the

Washington legislation, definitely condemn such

legislation as the Washington minimum wage law.

(ec) A comparison of the Washington statute

with the minimum wage laws subsequently presented

to the Supreme Court of the United States shows

that it contains all of the vices in the legislation

heretofore condemned,

—

*

'

T

II.

THAT THE SUPREME COURT OF THE STATE OF WASH-

INGTON ERRED IN ATTEMPTING TO DISTINGUISH

@

THIs CASE FROM THE ADKINS CASE ON THE

GrounpD TuHatT (1) THE ApkKINS Case PASSED

OnLy Upon AN ENACTMENT OF CONGRESS WHICH

~ Wovunp Nor Have tHE Porice Power oF A

STATE AND (2) THE SUPREME COURT OF THE

Unitep States WILL Not DIsrReGARD THE FIND-

ING OF THE LEGISLATURE OF WASHINGTON AND

THE SUPREME Court THat Sucu LEGISLATION

Is DESIRABLE IN WASHINGTON.

(a) The power of Congress within the District

of Columbia is as broad as that of the state within

its oun territory.

(b) In any event the subsequent cases passing

upon the states’ legislation are directly in point. |

(ce) The state legislature and the State Supreme

Court can not deprive a person of his constitutional

rights by merely stating that the enactment is made

. as an exercise of the police power for the correction

of dn existing evil.

_ : ~

ARGUMENT.

THIs Case Dors Nor Brine To THE Court A NEW

Pornt or Law But, ON THE ContrRARY, REsuB-

M ITs A QUESTION W uicu Has Bren REPEATEDLY,

DrcipED IN Favor OF THE CONTENTION OF THE

. APPELLANT.

(a) The disputed statute, Chapter 174-of the

Laws of Washington of 1913, as indicated by its

fitle, was passed by the legislature of Washington

in the’ year 1913 prior to any consideration of the

principles of minimum wage legislation by the Su-

preme Court of the United States.

In considering the Washington statute we de-

sire to emphasize the fact that it was passed in 1913,

long prior to the decision in the Adkins case and at

a time when the legislature did not have the benefit

of the views expressed by the Supreme Court of the

United States in that decision. Also, it is to be noted

that the statute does not represent any effort to meet

an emergency or any unusual situation, but is de-

signed to constitute a,part of the regular statutory

laws of the state,-without respect. to any particular

situation, which the legislature may have had before

it at the time of the passage of the law.

The substance of the Act is set forth in para-

eraph 2 which reads as follows:

9

‘See. 2. It shall be unlawful to employ

women or minors in any industry or occupation

within the State of Washington under con-

ditions of labor detrimental to their health or

morals; and it shall be unlawful to employ wo-

men workers in any industry within the State

of Washington at wages which are not adequate

for their maintenance. |

It is to be noted that this statute sets up only

one standard, that is, whether or not the wage is

adequate for the maintenance of the adult woman

worker. As is true of all statutes passed during this

_ period, it makes no attempt to require that the

minimum wage have any relation to the reasonable

value of the services rende red.

(b) Adtebus vs. Children’s Hospital, 261 U.

1525, 43 S.Ct. 394, 24 A. L. R. 1238, and companion

cases decided subsequent to the enactment of the

Washington legislation, definitely condemn such

legislation as the Washington minimum wage law.

Subsequent: to the passage of the Washington

minimum wage law the case of Adkins vs. Children’s

Hospital, 261 U. 8S. 525, 48 8. Ct. 394, 24 A. L. R.

1238, was decided by the iaeiias Court of the

United States in 1923. In considering the minimum

wage law which had been passed by Congress for the

District of Columbia the court, at page 558, stated

as follows:

; - 10

‘*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 busi-

ness, 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 ren-

dered, but the extraneous circumstance that the

employee needs, to get.a prescribed sum of

money fo~-inerre 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 seeure it. And with

that principle and 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 require-

ment, 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 such equivalence, is completely ig-

nored. The necessities of the emplovee are alone

considered, and these arise outside of the em-

ployment, are the same when there is no employ-

ment, and as great in one occupation as in an-

other. 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 differ-

ence 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

jie is not entitled to more. Tf what he gets is

worth what he pays, he ‘is not justified in de-

11

manding 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 eus-

tomer’s necessities. Should a statute undertake

to vest in a commission power to determine the

quantity of food necessary for individual sup-

* port, 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 un-

doubtedly fail before the constitutional test.

The fallacy of any argument iii{support of the

validity of such a statute would be quickly ex-

posed. Phe argument in support of that now

being considered is equally fallacious, though

the weakness of it may not be so plain. A stat-

ute requiring an employer to pay in money, to

pay at prescribed and regular intervals, to pay

the value of the services ‘rendered, even to pav

with fair relation to the extent of the benefit

obtained from the serviee, would be understand-

able. But a statute which prescribes payment

without regard to any of these things, and solely

with relation to cireumstances apart from the

‘contract of employment, the business affeeted

by it, and the work done under it, is so clearly

the product of a naked arbitrary ‘exercise of

power, that it eannot be allowed to stand under

the Constitution of the United States.’’

After the decision of the Adkins ease the Dis-

trict Court of the United States for the District of

Arizona held the Arizona minimum wage law for

women unconstitutional, and upon appeal the de-

cision was affirmed. Murphy vs. Sardell, 269 U.S.

530.

Again in 1927 the minimum wage law of Ar-

12

kansas was held unconstitutional by the’ District

Court of the United States for the Eastern District

of Arkansas. Upon appeal in the case of Donham

vs. West-Nelson Manufacturing Company, 273 U.S.

657, it was determined that the Arkansas act was

unconstitutional under the two preceding cases.

The unconstitutionality of this type of min-

imum wage legislation seems to have been generally

accepted by the bench, bar and. public subsequent to

this last decision and no further litigation upon this

subject appears until M orehead us. New York er rel.

ee, | Pa. eee , 80 L. Ed. Adv. Op. 921

(1936).

In the Morehead case the court again restated

its position using the following pertinent language:

. “The decision and the reasoning upon

which it rests clearly show that the State is

without power by any form of legislation to

prohibit, ehange or nullify contracts between

employers and adult women workers as to the

amount of wages to be paid.”’

* * * * * *

‘ce * * And utterly without significance

upon the question of power is the suggestion

that the New York prescribed standard includes

value of service with cost of living whereas the

District of Columbia standard was based upon

the latter’‘alone. As shown above, the dominant

issue in the Adkins ease was whether Congress

had power to establish minimum .wages for

_adult women workers in the District of Colum-

13

bia. The opinion directly answers in the nega-

- tive. The ruling that defects in the prescribed

standard stamped that Act as arbitrary and

invalid was an-additional ground of. subordi-

nate consequence.”’

“co * * * And, after assuming that women

would not be employed at the wages fixed un-

less they were earned or unless the employer

could pay them, the opinion says (p. 570):

‘But the eround on which the law is held to

fail is fundamental and therefore it is unneces-

_ sary to consider matters of detail.’ If the deci-

sion of the court turned upon the question of

the validity of the particular standard, that

question could not have been ignored by the

justices who were in favor of upholding the Act.

- Clearly they understood—and rightly—that, by

the opinion of the court, it was held that Con-

eress was without power to deal with the sub-

ject at all.’’ :

The statements of the court would clearly indi-

eate the invalidity of the legislative enactment which

48 before the court in this case.

(c) A comparison of the Washington statute

with the mintmam wage laws subsequently presented

to the Supreme Court of the United States shows

that it contains all of the vices in the legislation

heretofore condemned.

A brief comparison of the statutes which were

involved in the previous decisions clearly show the

vulnerability of the Washington act.

‘The District of Columbia Act, being 40 Stat-

14 :

utes at Large 960, chap. 174, Comp. Stat. sec.

3421'4a, Fed. Stat. Anno. Supp. 1919 p..234, pro-

vided for the same substantial machinery as the

Washington act for the determination of a minimum

wage, setting up a board which was authorized to

conduct a general investigation and by section 9 of

the Act: —

**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 thie. neces-

sary cost of living to any such women. workers

_to maintain them in good health and to protect

their morals; * * * ”

A consideration of the mechanies of the law

and the essential wording as sct forth in the Adkins

decision shows it to be a substantial duplicate of the

Washington law.

In the case of the Arizona statute, this, from

the records before us, was a direct attempt to fix a

minimum wage by legislative fiat without the inter-

vention of any board or commission to act as a fact

finding body, the Arizona law reading in effect as

follows:

‘*No person * * * shall employ any female

in any store, office, shop, restaurant, .dining

room, hotel, rooming house, laundry or manu-

facturing establishment at a weekly wage of

“ Boyan tna NR ee Se. ee RR a CL al

15

less than Sixteen Dollars ($16.00) per week;

a lesser amount being hereby declared inade-

quate to supply the necessary cost of living

to any such female, to maintain her health, and

to provide her with the common necessaries of

life.’’ Laws of Arizona, 1923, chap. 3, see. 1.

In the case of the Arkansas statute, we have

an extensive act designed to cover all the various

relationships which may occur in respect to .the

employment of women in industry. As shown in

Crawford and Moses’ Digest of the Statutes of

_Arkansas (1921) this act by section 7108 establishes

a mininuim wage. The section reads as follows:

**See. 7108. Minimum Wage. It shall be

unlawful for any employer of labor mentioned —

in section 7102 (referring to a section fixing a

nine-hour day for women) to pay any female

worker in any establishment or occupation less

than the wage specified in this section, to-wit,

except as hereinafter provided: All female

workers who have had six months’ practicable

experience in any line of’ industry or labor

shall be paid not less than one dollar and

twenty-five cents per day. * * * ’’ (The balance

of this section provides for inexperienced work-

ers and part time workers. )

Under section 7111 of the act the Industrial

Commission of Arkansas is given authority to read-

just the wage by means of the following procedure:

‘*See. 7111. Authority to Establish Mini-

mum Wage. If said commission should find,

after an investigation, that a lower minimum -

16

‘ate of wages is adequate to supply a woman

or minor female worker engaged in any ocen-

pation, trade or industry the necessary cost of

proper living and to maintain the health and

welfare of such woman or minor female work- -

er, (they) may, after a public hearing. duly ‘a

held, at which time all interested emplovers

and emplovees are given a reasonable oppor-

tunity to present their arguments, issue an

order establishing a minimum wage rate that

in their judement is reasonable and said rate

so established shall be the legal minimum wage

in ‘the industry or occupation affected, and

should’ said commission find, after said inves-

tigation, that the mininnon wage specified in

section 7108 is insufficient to adeqni itely supply

a woman or minor female worker eneaged in

any occupation, trade or industry the necessary

cost of proper living and to maintain the health |

and welfare ‘of such women or other female

worker (thev) may, after public hearine duly

held, at which time all interested parties are

given a reasonable opportunity to present their

argument, issue an order establishing a highes

minim ware for female workers that in ae

judement of the commission is reasonable, and

said minimum wage rate, so established by said

commission, shall be the legal minimum wace

in the industry or ocenpation affected.”

A consideration of these three statutes will

show that they are substanti: lv identical with that

which is involved in this ease, and are all designed

substantially to operate by means of the same ma-

ehinery, and to effect the same purpose.

We will not unduly lenethen this brief by dis-

. r > ,r . .

cussing the statute of New-York which was involved

‘ F .

17

in the Ti paldo ease, since it was a statute which was

drawn during the depression period and attempted

in part to eliminate some of the objections which had

been made to the prior statutes. Suffice it to say that

it is the same general statute, except that it does not

contain ail of the vices which the foregoing statutes

eontain,

From a consideration of the Washington stat-

ute, the prior decisions of this court, and the

identical nature of the Washington statute with the

statutes involved in the prior decisions, we respect-

fully submit that the Washington decision should

not be permitted to stand.

i.

\

TiHk SUPREME Court OF THE STATE OF WASHINGTON

Ernnp IN ATTEMPTING TO DISTINGUISH THIS

Cask From THE ADKINS Case ON. THE GROUNDS

Tear (1) rue ApKINS Cask Passep ONLY

Uroxn an ENacCTMENT OF CONGRESS WHICH

Wotntp Nor Have THE Ponick POWER OF A

STATE AND (2) THE Supreme CouRT OF THE

Unitrep States Witt Nor DisreGARD THE

FINDINGS OF THE LEGISLATURE OF WaASHING-

TON AND THE SUPREME Court THat Sucu Lea-

ISLATION Ts DESIRABLE IN WASHINGTON.

‘ 18

~The position. of the court below may be best

suminarized by-quoting three paragraphs from the

decision appealed from:

‘*The legal duty placed upon the employer

by our minimum wage law is that he must pay

women in his employ in wages a sum found to

be necessary for the maintenance of the health

as well as the morals of the employee. If the

wages paid equal or are in excess of the cost

of the maintenance of a normal health stand-

ard, the state’s concern in the matter ceases.

If the employer pays less than the amount

-found to be the minimum cost of the mainte-

nance of the normal health standard by virtue

of his more secure and powerful economic posi-

tion, the transaction savors of exploitation.”’

* * * *% * %

‘We held in Larsen vs. Rice, 100 Wash.

642, 171 Pae. 1037, that the controversy there,

which differs in no important particular from

the controversy here, had an added element not

found in the ordinary controversy by the indi-

vidual. It was not wholly a private concern.

It was affected with a publie interest, the state

having declared the minimum wage of a certain

amount to be necessary. Therefore, the state

has an interest in the way that the fixed ¢om-

pensation is actually paid. The statute is pro-

tective of the’ public as well as the wage earner.

‘Tf the state legislature and.state supreme

court find that the statute is of a publie inter-

ést, the supreme court. of the United States

will accept such judgment in the absence of

facts to support the contrary conelusion. Un-

less the supreme court of the United States ean

find beyond question that chapter 174, Laws of

1915, p. 602. Rem. Rev. Stat., section 7623 (P, C.

~ A REE ey

19°

Sec. 3256), et seq., is a plain, palpable invasion

of rights secured by the fundamental law and

has no real or substantial relation to the public

morals or public welfare, then the law must be

sustained. The United States supreme court has

not yet held that a state statute such as the one

in the case at bar is unconstitutional, and until

such time—Adkins vs. Children’s Hospital, 261

U.S. 525, 43 S. Ct. 394, 24 A. L. R. 1238, is not

controlling—we shall adhere to our holding in

the case of Larsen vs. Rice, 100 Wash. 642, 171

Pace. 1037; and Spokane Hotel Co. vs. Younger,

113 Wash. 359, 194 Pac. 595. It does not appear

upon the face of the minimum wage law or

from any facts of which the supreme court of

the United States must take judicial notice that,

in the state of Washington, evils did not exist

for which our minimum wage law was an appro-

priate remedy. The action of the state legisla-

ture and of this court indicates that such evils

do exist.”’

It is to be noted that the Supreme Court of

Washington bases its decision on two points: (1)

That the Adkins ease was not binding since the act

involved was an act of Congress; and (2) that the

legislature and the state court having determined

that the act is in the public interest, then that

therefore the Supreme Court of the United States

eould not grant relief.

s . . .

(a) The power of Congress within the District

of. Columbia is as broad as that of the state within

its own territory.

In attempting to distinguish the Adkins ease

20

the Supreme Court of the State of Washington took

the view that the right of Congress to legislate for

the District of Columbia was not sufficiently broad

to include any right: to make police regulations. In

support of this position the court says in its de-

cision:

‘“‘That. the powers not delegated to the

United States by the constitution nor prohibited

by it to the states are reserved to the states,

needs no citation of sustaining authority. The

police power of a state was not given to the

Federal government nor prohibited by the con-

stitution to the people of the respective states,

hence it is one of the reserved powers.”’

We believe that the contrary of this situation

is true, however, as to the right of Congress to

legislate as to the District of Columbia in that

‘ongress has all of the general rights of a legis-

lature, including police power, which the states

would have in their respective jurisdictions, subject

only to the express limitations of the Federal Con-’

stitution.

In the case of Shoemaker vs. United States,

‘

147 U. S. 282, the court states as follows on page

298:

‘‘We are not called upon, by the duties of

this investigation, to consider whether the al-

leged restriction on the power of eminent

domain in the general government, when exer-

21

cised within the territory of a State, does really

exist, or the extent of such restriction, for we

are here dealing with an exercise of the power

within the District of Columbia, over whose

territory the United States possess, not merely’

the political authority that belongs to them as

respects the States of the Union, but likewise

the power ‘to exercise exclusive legislation in

all eases whatsoever over such District.’ Con-

stitution, Art. I, See. 8, par. 17.”’

Likewise in the ease of Capital Traction Com-

pany vs. Hoff, 174 U.S. 1, 198. Ct. 580, 43 L. Ed.

873, the court stated as follows:

“T. The Connon of the United States,

being empowered bv the Constitution ‘to ex-

ercise exclusive legislation in all eases what-

soever’ -over the seat of the National Govern-

ment, has the entire control over the District

of Columbia for every purpose of government,

national or loeal. It may cxereise within the

District all legislative powers that the legisla-

ture of a State might exercise within the State;

and may vest and distribute the judicial author-

‘ itv in and among courts and magistrates, and

regulate judicial’ proceedings before them, as

it may think fit, so long as it does not eontra-

vene anv provision of the Constitution of the

United States.”’

Howard vs. Tllinois Central Railroad Com-

pany, 207 U. S. 453, 28 8S. Ct. 141, 52 L.

Ed. 297; '

Stoutenburgh vs. Hennick, 129 U. S. 141, 9

S. Ct. 256, 32 L. Ed. 637,

The authorities cited substantially sustain the

ra

22

proposition that an act of Congress applying to the

District of Columbia is limited only by the express

provisions of the Federal Constitution limiting the

powers of Congress. None of the limitations would

be in any way effective to differentiate the minimum

wage legislation of the Adkins case from that of

any similar legislation of the respective states.

(b) In any event the subsequent cases passing

upon the states’ legislation are directly in point.

Irrespective of the powérs of Congress over

the District of Columbia thé subsequent decisions

-of the Supreme Court of the United States hereto-

fore cited holding invalid the minimum wage laws

of Arizona and Arkansas are decisive of the present

ease,

In addition to this we-have the most recent

pronouncement of the court in the Morehead case

where, in the concluding paragraph of the majority

opinion, it is stated as follows:

“The New York court’s decision conforms

to ours in the Adkins ease, and the later rulings

that we have made on the authority of that

ease. That decision was deliberately made upon

careful consideration of the oral arguments and

briefs of the respective parties and also of

briefs submitted on behalf of States and others

as amici curiae. In the Arizona ease the attor-

ney general sought to distinguish the District

of Columbia Act from the legislation then be-

ie

fore us and insisted that the latter was a valid

exertion of the police’ power of the State.

Counsel for the California commission sub-

mitted a brief amicus curiae in which he elab-

orately argued that our decision in the Adkins .-

case Was erroneous and ought to be overruled.

In the Arkansas case the state officers, appel-

lants there, by painstaking and. thorough brief

presented arguinents in favor ef the same con-

tention. But this court, after thoughtful atten-

tion to all that was suggested against that deci-

sion, adhered to it as sound. And in each case,

being clearly of opinon that no discussion was

required to show that, having regard to the

principles applied in the Adkins case, the state

legislation fixing wages for women was repug-

nant to the due process clause of the Fourteenth

Amendment, we so held and upon the authority

of that case affirmed per curiam the decree en-

joining its enforéement. It is equally plain: that

the judgment in the case now hefore us must

also be affirmed.’

It is particularly interesting to note that in the

Adkins case the attorneys generals for the states of

Oregon, New York, California, Kansas, and Wis-

consin filed briefs in support of the legislation.

(¢) The state legislature and the State Supreme

Court can not deprive a person of his constitutional

rights by merely stating that the enact ment is made

as an erercise of the police power for the correction

of an eristing evil,

If the Washington court’s theory is to be ae-

> cepted, the fact that the state legislature and state

24

court find that a kaw is a proper exercise of the

police power, then the Supreme Court of the United

States is powerless to grant any relief against the

legislation. The mere statement of this proposition

shows its~fallacy. If ‘it -were accepted, then the

Constitution would be a nullity.

This theory was disposed of in the case of

Meyer vs. Nebraska, 262 U.S. 399, 67 L. Ed. 1042,

where, after’ the Jegislature of Nebraska and the

Supreme Court’ of Nebraska had at great length

stated the necessity for the particular legislation

governing the teaching of foreign. languages in the

schools, the court stated as follows :

“Tt is said the purpose of the legislation

was to promote civie development by inhibiting

training and education of the immature in for-

eign tongues and ideals before they eould learn

English and aequire American ideals; and ‘that

- the English’ language should be and beeome

the mother tongue of all ehildren reared’ in

this state.’ It is also affirmed that the foreign-

born population is very large, that certain com-

munities commonly use foreign words, follow

foreign leaders, move in a foreign atmosphere,

and that the children are thereby hindered from

becoming citizens of the most useful type, and

the publie safety is imperiled.

‘*That the state may do much, go very far,

indeed, in order to improve the quality of its

citizens, physically, mentally, and morally, is

Clear; but the individual has certain funda-

mental rights which must be respected. The

25

protection of the Constitution extends to all,—

to those who speak other languages as well as

to those born with English on the tongue. Per-

haps.it would be highly advantageous if all had

ready. understanding. of our ordinary speech,

but this cannot be coerced by methods which

conflict with the Constitution,—a desirable end

cannot be promoted by prohibited means.”’

The same proposition is disposed of in the case

of Minnesota vs. Barber, 136 U. S. 313, at page

319, where the court states as follows:

“The presumption that this statute was

-enacted, in good. faith, for the purpose ex-

pressed in the title, namely, te protect the

health of the people of Minnesota, cannot eon-

trol the final determination of the question

‘whether it is not repugnant to the Constitu-

tion of the United States. There may be no

‘purpose upon the part of a legislature toe vio-

late the provisions of that instrument, and vet

a statute enacted by it, under the forms of

law, may, by its necessary operation, be de-

structive of rights granted or secured by the

Constitution. Ino sueh cases the courts must

sustain the supreme law of the land by declar-

ing the statute unconstitutional and void. This

. principle of constitutional interpretation has

been often announced by this court.”

And the matter was again disposed of in the

‘ase of Buchanan vs. Warley, 245 U.S. 60, at page

74, where the court stated :

“The authority of the State to pass laws

in the exercise of the police power, having for

_ their object the promotion of the publie health,

26

safety and welfare is very broad as has been

affirmed in numerous and recent decisions of .

this- court. Furthermore, the exercise of this

power, embracing nearly all legislation of a

local character, is not to be interfered with by

the courts where it is within the scope of legis-

lative authority and the means. adopted rea- * ;

sonably tend to accomplish a lawful purpose. |

But it is equally well established that the police.

power, broad as it is, cannot justify the passage

of a law or ordinance which ruis counter to

the limitations of the Federal. Constitution;

that principle has been so frequently affirmed

in this court that we need not stop to cite the

cases.”?

We respectfully submit that Chapter 174 of the

Laws of Washington, 1913, is uneonstitutional and

void, so far as it attempts to fix a minimum wage

for adult women, for the reason that it. is in con-

flict with the Fourteenth Amendment of the Consti-

tution of the United States, that the judgment of

the Supreme Court of the State of Washington

‘should be reversed, and the judgment of the Su-

perior Court of the State of Washington for Chelan

County directed to be affirmed.

Respectfully submitted,

JOHN W. ROBERTS,

CROLLARD & O’CONNOR, 4

ROBERTS AND SKEEL,

Counsel for Appellant.

27

APPENDIX.

The pertinent parts of Chapter 174, Laws of

41913, page 602, being section 7623, et seq., of Rem-

ington’s Revised Statutes of Washington, are as

follows:

‘*Section 1. The welfare of the State of

Washington demands that women and minors

be protected from conditions of labor which

have a pernicious effeet on their health and

morals. The State of Washington, therefore,

exercising herein its police and sovereign

power, declares that inadequate wages and un-

sanitary conditions of labor exert such perni-

cious effect. ‘

“See. 2. It shall be unlawful to employ

women or minors in any industry or occupa-

tion within the State of Washington under

conditions of labor detrimental to their health

or morals; and it shall be unlawful to employ

women workers in any industry within the .

State of Washington at wages which are not

adequate for their maintenance.

‘See. 3. There is hereby created a com-

mission to be known as the ‘Industrial Welfare

Commission’ for the State of Washington, to

establish such standards of wages and ¢ondi-

tions of Jabor for women and minors employed

within the State of Washington, as shall be |

held under to be reasonable and not detrimental

to health and morals, and which shall be suffi-

cient for the decent maintenance of women.”’

Under Chapter 7, Laws of 1921, page 46, see-

tion 82, and page 68, section 134, being Remington’s

28

tevised Statutes (1932) Section 10840 and Section

10893 respectively the Industrial Welfare Commis-

sion Was abolished, and its duties assigned to the

Industrial Welfare Committee, consisting of the

Director of- Labor and Industries, the Supervisor of

Industrial Insurance, the Supervisor of Industrial

Relations, the Industrial Statistician, and the Su-

pervisor of Women in Industry!

“See. 6. It shall be the duty of the Com-

Inission to ascertain the wages and eonditions

of labor of women and nonors in the variots

occupations, trades and industries in whieh said

women and minors are emploved in the State of

Washington. * * *

% = * *% -

“See. 9. The commission shall specify times

to hold publie hearings, at which times employ-

_ers, emplovees or other interested persons may

appear and give testimony as to the matter un-

der consideration. The commission shall have rf

power to subpoena witnesses and to administer

nin = > >

“Section 10. If, after investigation, the

comission. shall find that in any occupation,

trade or industry, the wages paid to female em-

plovees are inadequate to supply them necessary

cost of living and to maintain the workers in

health, or that the conditions of labor are preju-

dicial to the health or morals of the workers,

the commission is empowered to call a confer-

ence composed ef an equal number of represen-

tatives of employers and emplovees in the oc-

cupation. or industry in question, together with

one or more disinterested persons representing

the public; but the representatives of the pub- -

29

lic shall not exceed the number of representa-

tives of either of the other parties; and a mem-

ber of the commission shall be a member of such

conference and chairman thereof. The eommis-

sion shall make rules and regulations governing

the selection of representatives and.the mode of

procedure of said conference, and shall exer-

cise exclusive jurisdiction over all questions

arising as to the validity of the procedure and

of the recommendations of said conference. On

request of the commission, it shall be the duty

of the conference to recommend to the commis-

sion an estimate of the minimum wage adequate

in the ‘occupation or industry in question to

supply the necessary cost of living, and main-

tain the workers in health, and to recommend

standards of conditions or labor demanded for

the health and morals of the employees. The

findings and recommendations of the conference

shall be made a matter. of record for the use

of the commission.

‘See. 11. Upon the receipt of such reecom-

mendations from a conference, the commission.

shall review the same and may approve any

ov all of such recommendatians, or if may dis-

approve any or all of.them and recommit the

subject or the recommendations disapproved of,

to the same or a new conference, After such ap-

proval of the recommendations of a conference

the commission shall issue ani obligatory order

to be effective in sixty (60) days from the date

of said order, or if the commission shall find

that unusual conditions necessitate a longer

period, then it shall fix a later date, specifving

the minimum wage for women in the oecupation

affected, and the standard conditions of labor

for said women; and after such order is ef-

fective, it shall be unlawful for any emplover in

suid occupation to emplov women over eighteen

(18) vears of age for less than the rate of

30

wages, or under conditions of labor prohibited

for women in said occupation. The commission

shall send by mail so far as practicable to each

cimployer in the occupation in question a copy

of the order, and each emplover shall be re-

quired to post a copy of said order in each

room in which women affected by the order

are employed. When such commission shall.

specify a minimum wage hereunder the same

shall not be changed for one vear from the date

when such minimum wage is so fixed.

“Sec. 12. Whenever wages or standard con-

ditions of ret have been made mandatory in

any occupation, upon petition of either employ-

ers or employees, the commission may at its

diseretion reopen the question and re-convene

the former conference orgeall a new one, and

any recommendations made by such conference

shall be dealt with in the same manner as the

original recommendations of a conference.

“See. 13. For any ocvtupation in which a

minimum rate has been established, the com-

mission through its secretary may issue to a

woman physically defective or crippled by age

or otherwise, or to any apprentice in such class

of employment or occupation as usually re-

quires to be learned by apprentices, a special

license authorizing the employment of such

licensee for a wage less than the legal mini-

mum wage; and the commission shall fix the

minimum wage for said person, such special

license to be ‘issued only in such cases as the

commission may decide the same is applied

for in good faith and that such license for

apprentices shall be in force for such leneth

of time as the said commission shall decide

and determine is proper,

* . % va

31

‘Sec. 18. If any employee shall receive less

than the legal minimum wage, except as here-

inbefore provided in section 13, said employee

shall be entitled to recover in a ¢ivil action the

full’ amount of the legal minimum wage as

herein provided for, together with costs and

attorney’s fees to be fixed by the court, not-

withstanding any agreement to work for such

lesser wage. In such action, -however, the em-

plover shall be credited with any wages which

have been paid upon account.

‘See. 19. All questions of fact arising un-

der this act shall be determined by the commis-

sion and there shall be no appeal from its deci-

sion upon said question of fact. Either em-

ployer or employee shall have the right of

appeal to the super ior court on questions of law.

% 99