dissenting.
I am unable to agree with the majority that Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545, 72 L. Ed. 913, is decisive of the present case.
First of all, the statement of Mr. Justice Brandéis, in the unanimous opinion' in Tagg Bros. v. United States, 280 U. S. 420, 439, 50 S. Ct. 220, 74 L. Ed. 524, should be noted: “This court did not hold in * * * Ribnik v. McBride that charges for personal services cannot be regulated. The question upon which this court divided * * * was whether the services there sought to be regulated were then affected with a public interest.” (Italics mine.)
The question to be determined here is not whether in 1928, when the Ribnik case was decided, the employment agency business was sufficiently affected with a public interest to permit the legislature to limit its charges for services, but whether it is so affected at the present time. “It is clear,” says Mr. Justice Roberts, speaking for the majority in Nebbia v. New York, 291 U. S. 502, 536, 54 S. Ct. 505, 78 *586L. Ed. 940, “that there is no closed class or category of businesses affected with a public interest * * *.” Or, as Mr. Justice Holmes expressed it in the majority opinion in Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, “Plainly circumstances may so change in time or so differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely private concern.” Mr. Chief Justice Taft gave recognition to the same view, in Wolff Co. v. Industrial Court, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, when he classified, as clothed or affected with a public interest, “Businesses which though not public at their inception may be fairly said.to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them.”
With me, the conviction is clear that, if the employment agency business did not hold such a peculiar relation to the public as to permit the legislature to limit its charges for services in the prosperous era of a decade and a half ago, the staggering unemployment problem of the past few years has now placed it in that category. This economic condition is, of course, a proper matter for judicial notice. West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 703. Today, if not in 1928, the declarations of Mr. Justice Stone, in his dissenting opinion in the Ribnik case, are peculiarly applicable and controlling: “We are judicially aware that the problem of unemployment is of grave public concern; that the conduct of the employment agency business bears an important relationship to .that larger problem and affects vitally the lives of great numbers of the population, not only in New Jersey but'throughout the United States; that employment agencies, admittedly subject to regulation in other respects (Brazee v. Michigan, 241 U. S. 340), and in fact very generally regulated, deal with a necessitous class, the members of which are often dependent on them for opportunity to earn a livelihood, are not free to move from place to place, and are often under *587exceptional economic compulsion to accept such terms as the agencies offer. * * * There is a public interest at such times in bringing- about a prompt readjustment of the labor supply to industry’s need for labor. The additional barrier to a quick readjustment created by the agencies’ raising of their rates affects that interest adversely. The establishment of a reasonable maximum rate is well calculated to obviate the abuse.”
To what extent, in the field of price regulation, the supreme court of the United States has in fact broadened the principle of the Ribnik case, in the subsequent decisions of Tagg Bros. v. United States, supra (commissionmen’s fees), Nebbia v. New York, supra (milk prices), West Coast Hotel Co. v. Parrish, supra (female minimum wage), and Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 60 S. Ct. 907, 84 L. Ed. 825 (bituminous coal prices), I deem it unnecessary to discuss. These decisions at least have not moved in the direction toward which the Ribnik case pointed. For present purposes, it is sufficient to say that the vast economic changes that have occurred since the Ribnik case was decided, and the close relationship that employment agencies now bear to the unemployment problem, present such differences in conditions that that decision can no longer be regarded as controlling, and we are entitled to make a new examination of the question. In the necessitous and unequal bargaining position in which the unemployed have come to be placed, it is not unconstitutional to close the doors to any possibility of ovérreaching or “job selling.”
The majority opinion is content to rest upon the ground that the Ribnik case has never been expressly overruled. This seems to me too narrow a view of real judicial responsibility. It is not les majesty to question the continued existence of the circumstances and conditions upon which a decision of the supreme court of the United States has been predicated, and in such a situation to reexamine the problem that is involved. In some instances this may be the only way in which that court will ever be afforded the oppor*588tunity to review its former decision. It was such a reexamination by the supreme court of Washington of Adkins v. Children’s Hospital, 261 U. S. 525, 43 S. Ct. 394, 67 L. Ed. 785, and a refusal to recognize it as controlling, that resulted in a review and overruling of it in the subsequent case of West Coast Hotel Co. v. Parrish, supra. Judicial decisions must not become mere copybooks, but they should always be present admeasurements of the principles and the spirit of the law. Except as to definite and invariable prescriptions and prohibitions of the Constitution, and such limited rules of property as, in the interest of society as a whole, require a permanent crystallization, past decisions do not establish the finalities of the law, and no sound judicial body will ever deal with them as such. Such decisions necessarily should be employed to measure and test the soundness of judicial thinking, and to safeguard it against transient instability, or the whims of changing personnel, but they obviously can never mark the boundaries to which the thought of the law can extend or its spirit can move.
The majority have properly refused to be guided by the reasoning in the Ribnik case in testing the validity of the statute involved under our state Constitution. They have properly held under that instrument that the employment agency business is one “affecting the public welfare.” They have inconsistently refused, however, to recognize it as one “affected with a public interest” under the federal Constitution, because they aré unwilling to allow their thoughts in that field to move beyond the boundaries of the Ribnik case. I am unable to stop there. The statute in my opinion is violative of neither the state nor the federal Constitution, and the application for a writ of mandamus ought accordingly to be denied.
The reasonableness of the charge fixed by the legislature in the statute is not raised in this proceeding and so is not involved.