(dissenting): I find myself halted at the very threshold of this litigation. So far as it is involved in this case, the act creating the court of industrial relations belongs in the class of statutes beginning to be known in the field of constitutional law as emergency statutes. The court of industrial relations is to do for this state, by means of orders respecting the conduct of essential industries, what congress did for the United States when it passed the Adamson law, and what the legislature of New York did for the people of that state when it passed the emergency housing laws. The statute was interpreted in this manner in the case of The State, ex rel, v. Howat, 109 Kan. 376, 198 Pac. 686, and in the original opinion in this case (Court of Industrial Relations v. Packing Co., 109 Kan. 629, 201 Pac. 418). The legislature did not completely socialize the manufacture of food products, the manufacture of clothing, and the production of fuel, and the mere fact that the defendant conducts one of the essential industries is not enough to subject its business to state control. The legislature had in mind the coal strike of 1919-1920, and merely authorized intervention by the court of industrial relations to insure such efficiency and continuity in production of the necessaries of life as will save the people from annoyance and distress. In the Howat case it was said:
“Continuous production, and production according to the approval of an efficiency expert, are not required at all. Only that continuity and efficiency are required which will secure the people from privation and oppression. . . . A controversy between employer and workers, or between groups or crafts of workers, which endangers production, creates an emergency, with which the court may deal. ...
“Section 9 does not authorize a general ‘revision of labor contracts.” (pp. 414, 415.)
*510To be cognizable by the court of industrial relations, the nuisance of strife, disorder, and waste, and the menace of public peace, public health, and .public welfare generally, consequent on industrial controversy, must be related to the ultimate object of the statute.
Applying the foregoing interpretation of the statute to the present case, until a controversy brings within reasonable contemplation a discomforting shortage in the supply of food which the defendant ■produces, public interest does not attach to the conduct of its business, and the powers conferred by the statute are not called into action.
It seems quite clear the court of industrial relations did not act on this interpretation of the statute. It evidently believed that on simple complaint it could, regulate conduct of the defendant’s business, and it even went far beyond the complaint presented to it, in its regulations.
The complaint to the court of industrial relations alleged broadly that the controversy between the defendant and its employees was one which endangered continuous' operation and efficiency of the service rendered by the defendant’s plant, and that the controversy affected, and would affect, the manufacture and production of commodities necessary for human food within the state of Kansas. The petition to this court pleaded this complaint, and the court properly enough held that the petition sufficiently alleged an emergency had arisen which justified the industrial court in talcing cognizance of the complaint. (Court of Industrial Relations v. Packing Co., 109 Kan. 629, 635, 201 Pac. 418.) The court now says, in effect, that the evidence taken by commissioner Noble established the fact that an emergency had arisen such as the statute contemplates. Presumably the court refers to the evidence bearing upon the meager facts stated in the opinion. If the court refers to other evidence establishing a statutory emergency, I have not been able to discover it by searching the record.
Mr. Charles Wolff, president and general manager of the defendant, testified as follows:
“Q. Where are your products sold, Mr. Wolff? A. Throughout the United States; also do some export business.
“Q. What proportion of your sales of your products is made in the state of Kansas, as compared with the whole amount of the business? A. Well, I don’t know exactly what the percentage would be, but of course it would be a small per cent. ...
*511“Q. Is there any competition in the business in which this company is engaged? A. Yes, we have plenty of competition.”
It is a matter of common knowledge that the packing industry of Kansas is one of immense magnitude. It is not necessary to present the statistics. No one would attempt to deny that the quantity production of packing-house products in Kansas is enormous- Only a small percentage of the product of the defendant’s small plant is sold in Kansas, and if the plant were to close premanently the defendant’s trade would be absorbed by competitors so quickly the people of the state who consume Wolff products would not be inconvenienced for a single meal, and the people of the state generally would not be affected at all.
Approximately 300 of the defendant’s employees are members of a local union of the Amalgamated Meat Cutters and Butchers Workmen of North America. The stock of the defendant is owned by the Allied Packers, a corporation owning packing plants in Boston, Mass., Wheeling, W. Va., Macon, Ga., Richmond, Va., Buffalo, N. Y., and one plant in Canada. In the testimony are some allusions to a threatened strike of members of the meat cutters and butchers organization, on account of controversies with packing companies other than the Allied Packers, over violations of an agreement to which the Allied Packers was not a party. Possibility that this strike might occur no longer existed when the order of the court of industrial relations was promulgated, and the opinion of the court of industrial relations accompanying its order makes no reference whatever to any emergency respecting the food supply of the people of this state, except in summarizing the complaint which initiated the investigation. The order was not based.on any menace to the food supply of the state, and could not be, because it was not possible that suspension of operation of the defendant’s plant could appreciably affect that supply.
Industries concerned with furnishing food, clothing, and fuel, are segregated by the statute for regulation. A controversy cognizable by the court of industrial relations, for purposes not merely of investigation but of regulation, must be definitely related to the sub-. ject of supplying the state with the necessaries of life, and must create an emergency respecting that supply, or basis for the classification of industries fails, and the classification becomes arbitrary. In this instance, not only were the fundamental element's of emer*512gency lacking, but elements which, under other circumstances, might contribute to an emergency, were not present.
Employees of the defendant testified that what they wanted was an eight-hour day, regardless of pay for extra hours. While the defendant has yards for accommodating live stock, and has facilities for refrigerating its products, it is a small, local plant, depending on an irregular local live-stock market, which it must maintain, or lose altogether, and the following finding by commissioner Noble is fully sustained by the evidence:
“By reason of the limited capacitjr of the plant, especially the refrigeration and storage, and the limited market for live stock at Topeka, it is impracticable to operate this plant with shifts of workmen, or to use more than one set or shift of workers in its general operation. The plant is the only quantity purchaser at Topeka of live stock for killing, and except to a limited extent, the packing company does not have control or advance notice of the quantity of live stock which will be delivered, or when. It is also practically necessary that the plant purchase all of the live stock offered and delivered in order to hold the market, the purchases being made on the basis as to price of the competitive market at Kansas City. It is also practically necessary that all live stock purchased be killed within a limited time after it is received at the yards, and when killed it is necessary that the operations continue without cessation until the meat is placed in refrigeration. Therefore, on some days the operation of the greater part of the plant will necessarily occupy only a few hours, and on other days more than eight, or even nine hours, depending largely upon the amount of live stock on hand for killing, and the condition is one that cannot practical!y be controlled by the respondent. The most arduous labor, that of the killing gang, working on what is spoken of in the evidence as the “chain,” is not continued more than eight hours a day, but the extra time is generally consumed in the cleaning-up work after the killing is over. The operation of the plant would not afford sufficient working hours per week to hold the men if those in the killing gang were not afforded other work in the plant besides the actual killing. Since the abolishment of extra pay for time over eight hours, the number of hours of work per day at the plant has not changed materially from those which obtained during the period covered by the expired contract.”
It is regrettable that men and women should be tempted, in order to earn a living, to accept employments calling upon them to overtax their strength. In this instance, however, we are confronted by this dilemma: Continuity and efficiency of operation of the defendant’s plant must be maintained, in order that the people of the state may be supplied with food; the defendant’s plant is so located, is of such size, and must operate under such conditions, that its employees must sometimes work more than eight hours per day; because overwork ultimately impairs ability to produce, this fact *513creates an emergency under the statute with which the court of industrial relations should deal; to correct the evil which constitutes j the emergency, working more than eight hours a day must be pro-( hibited; to prohibit working more than eight hours a day will close \ the defendant’s plant; and so a regulation nominally in the interest of continuity and efficiency of production puts an end to the defendant’s contribution to production.
The court of industrial relations recognized the fact that the defendant’s employees must work extra hours when necessary. In the opinion accompanying the order it was said:
“The respondent’s evidence shows that it is unable to control the supply of live stock. Farmers and stock raisers will ship in the live stock when it is ready to ship; and so, in spite of all the management can do to keep up a steady supply, there will be times when the yards fill up and it becomes necessary, in order to avoid great loss to the company, to run more than eight hours a day.”
The court of industrial relations theorized on the subject of paying time and a half for overtime, as follows:
“Overtime should not be considered in the light of extra pay; the wage should be fair on the eight-hour basic day. Overtime should be considered as a penalty upon the company to prevent the long hours and exhaustion of the workers.”
Commissioner Noble, sticking to the facts, concluded his finding, quoted above, as follows:
“Therefore, the commissioner finds that the hours of employment- of the workers generally in the plant are governed by conditions over which the respondent has not practical control, and that the only effect of the establishment of a basic eight-hour day in the court’s order would be upon the rate of wages required to be paid; that, however it might be regarded in other cases, the basic day in this order is a wage provision rather than a working condition.”
This takes working more than eight hours a day out of the case as something creating an emergency, and leads to consideration of the subject of wages in the defendant’s plant, as creating an emergency in the food supply of the people of this state.
Commissioner Noble returned the following finding:
“The net change of wages put into effect by the packing company on January 17, 1921 [which brought on the controversy], was slight beyond the abolishment of the 5-cent-per-hour-bonus and the extra pay for overtime. Some wages were raised, more were unchanged, and the remainder were lowered from 2% per cent to 14 per cent, making an average reduction in the hourly wage throughout the plant of less than a half cent per hour, . . .”
*514The court of industrial relations contends the reduction was greater. In any event, the reduction was small, 'and the presiding judge of the court of industrial relations testified before commissioner Noble concerning the wage scale contained in the court’s order as follows:
“In the final wage scale .that we made we believed that we had not in any very serious, to any very serious extent, increased the wage as fixed by the company in its posted notice. . . . We realized that we possibly had increased some, but we felt not sufficiently to cripple the company financially in any serious way.”
The actual increase is not material. Whatever it may have been, the court of industrial relations did not regard the wage scale of the ‘ defendant’s plant'as so low that, by degrading labor, it limited production of one of the necessaries of life to such an extent as to create an emergency, and it could not have been so regarded.
Strikes are infectious things. They may spread from plant to plant, and from industry to industry, and may invite exercise of all the power the court of industrial relations possesses. But there was no strike. Many of the defendant’s employees are old residents and responsible citizens of the city of Topeka, and the testimony shows they were not under domination of agitators. The leaders were earnest, sensible, law-a'biding men and women, who believed they were unjustly treated. There was evidence that the supply of labor available to the defendant was abundant, and a previous strike, the only One in the history of the plant, was little more than fifty per cent effective, and lasted but a short time. Sections 17 and 18 of the court of industrial relations act, prohibiting and punishing picketing, intimidation, and other trouble-making incidents of a strike, were available for preservation of the public peace, had a strike occurred.
Taking into account the relation of the defendant’s product to the food supply of the state, and the entire situation existing at the defendant’s plant when the controversy arose, I am unable to discover anything approaching an emergency such as the statute contemplates, and regard the order of the court of industrial relations . as improvidently made. Since I do not reach consideration of the legal'questions raised by assuming an emergency, it would appear officious for me to discuss them.
Porter, J., concurs in this dissent.