(dissenting). The majority seem to rest their conclusions, in sustaining the validity of the Women’s Minimum Wage Statute, upon the authority of two classes of cases, one class holding minimum hours of labor laws to be valid, and the other holding that a statute forbidding the employment of women in saloons constitutes a proper exercise of the police power. There can scarcely remain a doubt as to the correctness of those cases — at least none exists in my mind.
Society is interested in the protection of the health of women, and laws regulating their hours of labor and the kind of labor in which they may engage, are valid because such regulations tend to the protection of health, not only of the women whose habits of labor are regulated, but the whole of humanity. The same may be said of child labor laws. The hours of labor of men in extra hazardous or arduous employments may be regulated by law because society at large is interested in the preservation of men’s safety and health.
Laws prohibiting the employment of women in or about drinking saloons are valid for such obvious reasons that no discussion is necessary.
To these classes of legislation in the exercise of the police power may be added another class which regulates not only the hours of labor, but also the wages of persons engaged in public or <z«asi-public service, and such laws are generally held to be valid exercises of power. Consideration for the efficiency of the public service justify such laws and bring them within the rule that the sovereign power of the State may be called into action for the promotion of the public health, morals or safety, and even of the public convenience. They are justified, not because they especially benefit a class of individuals, but in spite of it, if the interests of the public call for the given regulation.
“To justify the State in thus imposing its authority in behalf of the public,” said the Supreme Court of the United States in Lawton v. Steele, 152 U. S. 137, “it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.”
The statute now under consideration does not, in my opinion, stand the test prescribed by the highest court in this country in the above quotation. Nor do the authorities cited in the opinion of the majority sustain it.
Statutes prescribing hours of labor for either women or men are valid, when reasonable, but it is quite a different thing to say that the lawmakers may invade the right of contract by fixing wages for men or women engaged in private service. There is no basis for such governmental interference. The Supreme Court of the United States said:
“If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Mugler v. Kansas, 123 U. S. 623. And the same learned court in a recent case used the following language very pertinent to the question now under discussion:
“The right of a person to sell his labor upon such terms as he sees 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 it.” Coppage v. Kansas, 236 U. S. 1.
Mr. Freund, in his work on Police Power (section 318), says: “The power to regulate the rate of wages, while freely exercised in former- times, has not been claimed by any American State. * * * In principle it would make no difference whether the rate fixed by law were intended to be a minimum or maximum rate. Consideration of health and safety which complicate the question of hours of labor do not enter into the question of rate. The regulation would be purely of an economic character. It would be closely analogous to the regulation of the price of other commodities or services.”
I challenge the correctness of the assertion that there exists a discernible relation between the wages of women and their health or morals. It may be truly said in a largef sense that the contentment which financial ease sometimes brings is conducive to health and morality, but, if so, that effect is not confined to either of the sexes.
It is almost axiomatic that society would be better off if everybody received greater remuneration and in more equal proportion — in other words, if there were no poor — and the attainment of that ideal is the hope of those who search for ways for the improvement of social conditions. To that end men willingly impose governmental restraint upon themselves. But unless the American conception of legal regulation of personal liberty has changed, and accepted theories of constitutional government are to be abandoned, it will scarcely be urged that the price of labor generally can or should be regulated by law. The right to sell or buy labor on his own terms is among the things that the individual has not, under our scheme, surrendered to government. And women possess that right to the same unrestricted extent as men. They stand, in that respect, in no class to themselves.
Wealth, at least to the extent that it affords ease and comfort, is the goal of all mankind, regardless of sex, and failure of its attainment often brings discontent and unhappiness, but I am unwilling to say that woman’s health or virtue is dependent upon financial circumstances so as to justify the State in attempting to regulate her wages. Her virtue is without price, in gold. She may become the victim of her misplaced affections and yield her virtue, but sell it for money — no. When she falls so low as that it is only from the isolated helplessness of her shame and degradation.
Nor is the health of women, as a class, affected more by poverty, if at all, than that of men. If it is, then men who are charged with the duty of supporting wives and daughters should have their wages regulated by law too when we enter upon the exercise of that governmental function. If affluence is essential to the health of women and we determine to bring it about by legal regulation of wages, then there should be no distinction made between the wages of the women themselves, and of the men who are called on to support them. I maintain that neither the one nor the other is a proper subject for governmental interference, but that the ills and inconvenience of poverty to which all mankind, without distinction of class, is heir, must be corrected by other means and through other influences and channels. There are ills which will never be entirely eliminated, for they are among the human imperfections which will survive to some extent as long as earthly time lasts.
The Supreme Court of the United States has repeatedly held that the unrestricted right of an individual to sell or buy labor, unless there are circumstances which involve the public interest, is a part of the liberty of the citizen protected by the Federal Constitution. Butchers Union, etc., Co. v. Crescent City Co., 111 U. S. 746; Allgeyer v. Louisiana, 165 U. S. 578; Adair v. U. S., 208 U. S. 161; Smith v. Texas, 233 U. S. 630; Coppage v. Kansas, supra.
Until that court, in a decision which constitutes a precedent, changes that rule, or holds that minimum wage laws do not fall within it, I am not disposed to yield my deliberately formed convictions on the subject and uphold a statute which it seems to me is a clear invasion of personal liberty of action.
The case of Stettler v. O’Hara, which went up to the Supreme Court of the United States was decided by an equally divided court and without a written opinion. Under the practice of that court, as I understand it, such a decision does not become a precedent and it is without persuasive force. We should not assume that, merely because the nonparticipating justice who otherwise would have broken the tie had been of counsel in the case on the side which sought to uphold the validity of the statute, when the same question is again presented the decision will be the same as that which resulted from the accident of an equally divided court. We can not foresee when nor how nor under what circumstances the question will again come before that court for decision and the State courts are under no obligation to consider the decision as a precedent until that court so treats it.
I have discussed only such questions concerning the validity of the statute as are presented in the briefs of counsel and discussed in the majority opinion, and I express no opinion on other questions which a further analysis of the statute might suggest.