I concur in the majority opinion to the extent that the title to the act in question is not sufficiently broad in its language to include the legislation concerning wages for men and minors, and is therefore violative of section 57, article 5, of the State Constitution. I agree also that the obligatory orders should be stricken down, not for the reasons specifically assigned by the majority of the court, but because in my opinion the act constitutes an unauthorized delegation of legislative powers in violation of article 4 of the Constitution, and for the further reason that the act by its specific terms would deny the parties proper judicial review of the commission's actions, and therefore would work a denial of due process of law in violation of the 14th Amendment to the Federal Constitution.
The majority opinion recognizes in the *Page 190 Legislature a broader constitutional authority in the matter of delegation of its own powers than I am able to acknowledge. By sections 5, 8, 9, and 10, it has attempted to confer upon the Industrial Welfare Commission the function of prescribing minimum wages and standards of employment conditions. A course of procedure is laid down for the commission's guidance in arriving at its conclusions, and by section 20 its decisions upon questions of fact are made final, with the privilege of appeal on questions of law alone.
The Legislature is prohibited from delegating any of its lawmaking powers to administrative officers, article 4, Const., but it may enact a law complete within itself, and having a general objective, and may confer upon administrative officers the power to supply details in connection with carrying the law into effect. Wilson v. Kirkpatrick. 144 Okla. 44, 289 P. 306. The lawmaking body may confer upon administrative officers the power to make regulations for administering the laws, but may not delegate to them the power to make laws for the government of their departments. The general policy sought to be inaugurated by the statute must be clearly pronounced, and the powers of regulatory administration as conferred must be appropriate to the execution of that policy, and are valid only when clearly within the scope thereof. Panama Refining Co. v. Ryan. 203 U.S. 388, 79 L.Ed. 446, 55 S.Ct. 241; Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L.Ed. 1570, 55 S.Ct. 837.
Under the Federal Constitution the legislative power is confined to the Congress. Article 1, secs. 1, 8. Those sections provide that all legislative powers granted in the Constitution shall be vested in the Congress, and Congress is empowered to make all laws which shall be necessary and proper for carrying into execution its general powers. If a distinction between the powers of Congress as there conferred and the powers of the Legislature as conferred by our Constitution and restricted by article 4 may be drawn, it appears that article 4 more definitely confines our legislative department to its own peculiar functions. The effect of the provisions, however, is approximately the same; legislative powers are not to be delegated to agents in either case.
Although the question immediately under consideration is not a federal one, the pronouncements of the United States Supreme Court thereon may well serve as a guide. In the Panama Refining Co. Case, above, commonly referred to as one of the N. R. A. decisions, Mr. Chief Justice Hughes, in dealing with a like question, said:
"So, also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations, — 'not for the government of their departments, but for administering the laws which did govern.' United States v. Grimaud, 220 U.S. 506, 517, 55 L.Ed. 563, 567, 31 S.Ct. 480. Such regulations become, indeed, binding rules of conduct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined."
That decision clearly reveals, as hereafter shown, that the statute must first declare a legislative policy with respect to the subject of legislation; that the powers conferred must be bounded within a stated standard of action, and that the delegate upon whom the powers are conferred must be required to make findings in any proceeding instituted or inaugurated pursuant to his authority when the exercise of that authority would ordinarily violate the due process clause of the Constitution, though intended as a valid exception thereto under the police powers. This is made clear by the language employed by the Chief Justice of the United States in said case, as follows:
"Section 9(c) is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress subdeclared a policy with respect to that subject; whether the Congress has set up a, standard for the President's action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition."
The statute here under consideration relates to the subject of certain employees in occupations and industries. The policy declared is state protection of those employees against inadequate wages and unsanitary conditions of labor such as would exert a pernicious effect upon the health and morals of said employees. *Page 191
Looking to the sections of the statute mentioned above, we find that the regulation of all occupations, trades, and industries, with reference to the so-called welfare of the employees engaged therein, is purportedly given over to the Industrial Welfare Commission, except, by section 23, the occupations of agriculture, horticulture, or dairy or stock raising are withheld from the commission's supervision. Though the Legislature has definitely designated the occupations to be excluded from the operation of the act, no attempt was made to name by particular designation the occupations, trades, and industries included in its operation. The names of those occupations, trades, and industries by particular classification were as well within the knowledge of the Legislature as they can ever be within the knowledge of the commission. They could have been designated in the statute. None of the words "occupation" nor "trade" nor "industry" is definitive of any particular business or calling. The commission is given a roving authority to select a trade, occupation, or profession and to make this subservient to its will, or to the will of that unidentified conference which it may call. It is left free to roam at large through the host of occupations, selecting or rejecting at random, and according to whim, if whim it would indulge, any one or more thereof over which to extend its supervisory powers, or from which it will withhold them.
None can invoke its original jurisdiction or gain its attention in the first instance to any given claim or abuse. Though we are to presume that the commission will perform its duties, no duty is placed upon it to consider at any time the wishes or initial petitions of those affected by the act. It may in any instance stand unmoved, for no right is extended to anyone to invoke its original action. Since it is not susceptible to petition, how can it be presumed that it will act at all, or, if action is taken, it will lend a hearkening ear to all alike? So, in this respect, it is set to work without yardstick, without a standard of action, to guide it.
The wage authorized by this act is the minimum wage required to support in health and morals. "The bare cost of living must be met." West Coast Hotel Co. v. Parrish (infra). The act does not contain any definite standards, limitations, or yardstick for the guidance of the administrative board in finding such cost. What elements must the board consider in fixing the wage beside the cost of food and clothing? Is a sum to provide for insurance against old age dependence to be considered? Must cosmetics and cigarettes be provided for? The questions may be ludicrous, yet they illustrate that an unguided board has the power to fix the wage through caprice rather than upon sound judgment and common sense.
The commission is permitted, not merely to find facts upon which to apply a rule, but is left to say how, and when, and in relation to whom it will act, or whether it will act at all. These are legislative powers beyond those which it may delegate. They fall within those essential legislative functions which cannot be delegated. (Herrin v. Arnold, Judge,183 Okla. 392, 82 P.2d 977.)
There is another reason why the act should not stand as a valid and complete statute with powers merely administrative conferred. It will be noted that the commission does not actually formulate its policies and make its obligatory orders there authorized except as the automaton of an unnamed and unofficial group designated a "conference," made up of citizens to be called into action by the commission. The recommendation of this conference is, in the final analysis, controlling, and the order of the commission must reflect the desires of the conference, and is in no sense the independent judgment of the commission. We spoke of a similar situation in Herrin v. Arnold, supra. In discussing the same constitutional question with reference to the Barber Law (art. 2, ch. 24, S. L. 1937) we said:
"It must be conceded that, if the section does confer such power on an unnamed, unofficial group, it is within the inhibition of the Constitution. It is also apparent that the act would be invalid if the agreement referred to were approved without investigation, or even if the agreement were considered as the sole evidence of the facts which the board is authorized to find, since no agreements of individuals could make facts exist which do not exist, so far as others and the public are concerned."
The agreement there mentioned was that entered into by a certain per cent. of the barbers of any city as to prices to be fixed, and that committee of barbers performs a very similar function to that of the conference mentioned in the statutes here. There the barber board was not bound by the agreement, but made its own findings. Here the circumstance is to the contrary. The recommendations of the conference are final upon the commission. To place such powers in an unofficial, unnamed board or conference, as was done here, would not *Page 192 constitute a practicable standard of action to guide the administrative officers.
The effect of the act under consideration here is to delegate to a named board the right to delegate to an unnamed board the powers of the Legislature, so far as the question of minimum wages is concerned. Although certain powers of fact finding are to be exercised by the commission to determine the necessity for the fixing of the wage scale — a sort of jurisdictional finding, so to speak — the law clearly states that it is the recommendation of the unnamed body that determines the rate. None of the cases of this court has ever upheld such an unreserved delegation of authority or permitted such "unfettered discretion." Conceivably the conference which recommends need not even consider the evidence from which the commission made its deductions. The commission's preliminary finding may be based upon conditions, places, situations, or admissions which may not be considered by the conference. The authority given the commission to approve or disapprove the conference report does not demand that its action be based upon its consideration of the report in connection with the evidence before it. It may be inferred that it will, but it is certainly not so compelled. Its discretion is unfettered. (Panama Refining Co. v. Ryan, supra.)
There is yet another reason why the act should not stand. Proper procedure for the safeguard of the constitutional rights of the parties is not provided for and made mandatory. The commission is not required to receive evidence upon which the recommendations of the conference are based and to preserve the same. Since the obligatory orders are based upon the findings or recommendations of the conference and are not the result of the actual findings of the commission upon the evidence actually received and preserved, the statute furnishes no adequate means to the parties whereby they may protect themselves against an undue interference with their liberty of contract. Full opportunity of judicial review is not provided for. Appeal is allowed upon questions of law alone. This would ordinarily afford to the parties an opportunity for judicial review of the orders. National Labor Relations Board v. Jones Laughlin Steel Corp., 301 U.S. 1. But, in the absence of the evidence, judicial review of all questions of law is impossible. One of those questions is whether the obligatory order is supported by sufficient evidence. Without the evidence the review cannot be complete. Failing in this, the statute upon its face would authorize the commission to violate the due process clause of the State and Federal Constitutions. Fact-finding administrative officers, whose orders issued pursuant to alleged police powers will alter or take away constitutional rights, must base their actions upon proper evidence. Where their conclusions are made final as to the facts, their orders will, nevertheless, be set aside on review unless supported by the evidence. Federal Trades Com. v. Curtis Pub. Co., 260 U.S. 568, 43 S.Ct. 210. Failure to require a record of the evidence defeats opportunity for judicial review and annuls the statute. In this respect the statute here attempts to delegate purely arbitrary power and is unconstitutional. Neither on appeal as provided nor by independent action in equity would the parties have fair opportunity for relief against the commission's orders. There would be no evidence present or available to show the grounds upon which such orders were based, and none can be supplied, for the commission's action is made final as to the facts.
The Supreme Court of the United States, in Southern Ry. Co. v. Virginia, 290 U.S. 190, 54 S.Ct. 148, had under consideration a very similar situation arising under a statute of Virginia pertaining to the regulation of railway crossings. Speaking through Mr. Justice McReynolds, the court said:
"This court has often recognized the power of a state, acting through an executive officer or body, to order the removal of grade crossings; but in all these cases there was the right to a hearing and review by some court. * * *
"After affirming appellant's obligation to comply with the commission's order, the court below said: 'The railroad is not without remedy. Should the power vested in the Highway Commissioner be arbitrarily exercised, equity's long arm will stay his hand.' But, by sanctioning the order directing the railway to proceed, it, in effect, approved action taken without hearing, without evidence, without opportunity to know the basis therefor. This was to rule that such action was not necessarily 'arbitrary.' There is nothing to indicate what that court would deem arbitrary action or how this could be established in the absence of evidence or hearing. In circumstances like those here disclosed, no contestant could have fair opportunity for relief in a court of equity. There would be nothing to show the grounds upon which the commissioner based his conclusion. He alone would be cognizant of the mental processes which begot his urgent opinion. *Page 193
"The infirmities of the enactment are not relieved by an indefinite right of review in respect of some action spoken of as arbitrary. Before its property can be taken under the edict of an administrative officer, the appellant is entitled to a fair hearing upon the fundamental facts. This has not been accorded. * * *"
Here the act undertakes to empower the unnamed members of an unofficial conference to destroy the liberty of contract under the guise of police powers with nothing of record to indicate the grounds upon which such conference based its conclusions, leaving wholly in darkness the factual basis of the resulting orders of the commission. The act does not accord a fair judicial hearing upon the fundamental facts; there is no adequate way open for the determination of the question of law whether the facts support the orders.
In my opinion, the statute does not fully protect the parties as citizens of the United States against abridgment by the state of their fundamental privileges and immunities without due process of law as guaranteed by the 14th Amendment. (Southern Ry. Co. v. Virginia, supra.)
The sections of the statute under consideration in this case are substantially the same as are found in the wage and hour law of the state of Washington. I am aware that the Supreme Court of that state has held the act constitutional. Larsen v. Rice, 171 P. 1037; Spokane Hotel Co. v. Younger, 194 P. 595.
In the Larsen Case the particular constitutional questions considered are not revealed. The court merely states that as to those questions it would willingly rest its judgment upon the decisions of the Supreme Court of Oregon wherein the constitutional questions were resolved in favor of a similar act of that state. Stettler v. O'Hara, 139 P. 743; Simpson v. O'Hara, 141 P. 158.
In the Spokane Hotel Case the constitutional question was due process. The employer contended that, since the statute failed to provide for notice of the hearings of the commission, it violated the provision that "No person shall be deprived of life, liberty, or property without due process of law." The court justified denial of notice upon the ground that "employers have no vested right to employ women or minors, and therefore are not entitled to notice as a matter of right" in hearings had pursuant to police power regulations. Whether or not that statement is correct is not material here. I am not considering the question of due process from the standpoint of failure of notice.
Looking to the Oregon case of Stettler v. O'Hara, supra, it is observed that the holding of the court there with reference to the question of improper delegation of legislative power by the statute is embodied in the following words of the opinion: "Neither does it delegate legislative power to the commission. It is authorized only to ascertain facts that will determine the localities, businesses, hours, and wages to which the law shall apply." The statute here under consideration did attempt to delegate legislative powers, and for that reason is unconstitutional. I cannot agree that an authorization to an administrative board to designate the businesses to which the law shall apply is not a legislative function. I therefore prefer not to follow the Oregon authority, if, in fact, it may be said to be in point.
The case of Simpson v. O'Hara, supra, follows the Stettler Case, and contains no discussion of the question of delegated legislative powers. It merely holds that the Oregon statute does not violate that portion of the 14th Amendment to the Federal Constitution which provides that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The opinion does not explain why the statute fails to violate said constitutional provision except to say that "local self-government lies at the very foundation of freedom, and the private and local affairs of a community are sacred from the interference of the central power, unless oppressive and unreasonable encroachment on the liberties of the citizen renders such interference imperatively necessary, and such is not the case here." I do not know what particular provisions of the statute were attacked in the two Oregon cases, except, in the first case, Stettler v. O'Hara, the plaintiff contended "that the statute is void for the reason that it makes the findings of the commission on all questions of fact conclusive, and therefore takes his property without due process of law." The court properly held that the denial of the right to appeal did not violate the due process clause, citing as authority Louisville N. R. R. Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48. But in the last-cited case, the court recognized the right of an aggrieved party to go to the courts for a review of all questions of *Page 194 law in connection with administrative orders.
Mere failure to provide for appeal will not invalidate such statutes; judicial review will not be denied in cases of that character, but a statute which by its terms makes full judicial review of an administrative order a practical impossibility is invalid as a denial of due process. Southern Ry. Co. v. Virginia, supra.
The two Oregon cases, supra, were taken to the Supreme Court of the United States, where they were affirmed without opinion by an equally divided court, one of the justices not participating (243 U.S. 629, 37 S.Ct. 403).
I do not know the exact nature of the questions before the United States Supreme Court in that case. I must assume that the court was called upon to say whether the denial of appeal on questions of fact would prevent judicial review, and whether the abridgment of the privilege of contract was unwarranted under the police power as applied in Oregon, resulting in denial in either case of due process. I am unable to discover any other specific federal questions in the Oregon cases. And I am not concerned with them here; I do not say that the denial of right to appeal denies due process; neither do I say that the police power of the state may not in some degree extend to actual abridgment of the right to contract on the part of employer and employee.
Again, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed. 703, 57 S.Ct. 578 (appealed from Supreme Court of Washington, 55 P.2d 1083), the Washington statute came before the Supreme Court of the United States. There the only issue (except that of arbitrary discrimination) was deprivation of freedom of contract. It was held that the statute was not violative of the 14th Amendment in that respect so far as women and minor employees were concerned. I am not concerned here with the question of illegal abridgment of the freedom of contract.
I think the judgment should be reversed and the cause remanded, with directions to issue the writ.
I am authorized to say that Mr. Justice WELCH concurs in these views.