lone dissent

[The following account is from The United States Law Week, December 1936. I'm unaware of any transcripts of the oral arguments in this case.]

Power to Fix Minimum Wages Again Argued

The validity of minimum wage legislation was argued once more before the Supreme Court of the United States last week. At issue was the Minimum Wage Law for Women of the State of Washington, enacted in 1913.

As was held by the Court in the case involving the Minimum Wage Law for Women of the State of New York (3 LW 1021), so in the instant case counsel who defended the law did not ask the Supreme Court to reconsider and overrule its decision in the Adkins case (261 U.S. 525), rendered in 1923, holding unconstitutional a Minimum Wage Law for Women in the District of Columbia because it interfered with the liberty of contract guaranteed by the due process clause of the Fifth Amendment.

Adkins Decision in Question

The Assistant Attorney General of Washington made it clear that “we don’t take any such position” that the Adkins case must be overruled in order to sustain the Washington Law. The constitutionality of the law in all of its particulars is not in issue, he said. What is in issue, counsel maintained, is the validity of an order of the Industrial Welfare Committee of the State fixing the minimum wage for chambermaids in hotels, as applied to a contract between a chambermaid and a hotel for her employment at a smaller wage.

Should the Supreme Court see fit to rule solely on this narrow issue, the question whether a state has the power to enact minimum wage legislation, in light of the sanctioned expansion of the police power since the decision in the Adkins case, will remain an open one to be decided in some future case.

A three-judge federal court recently sustained the validity of the Minimum Wage Law for Women of the State of Ohio (4 LW 332). It has been reported that the case will be taken to the Supreme Court.

Argument Against Statute

The arguments in the Washington case were opened by E. L. Skeel, of Seattle, on behalf of the hotel. In reviewing the facts of the case, he stated that a chambermaid employed by the hotel brought an action against it to recover the difference between the minimum wage established by order of the Industrial Welfare Committee and the smaller wage she was actually paid. The court ruled that no recovery could be had. On appeal, the Supreme Court of Washington held that the State Minimum Wage Law is constitutional, and, therefore, the chambermaid is entitled to the relief for which she prayed (55 P. (2d) 1083; 3 LW 818).

The Washington law is “identical” with the federal law considered in the Adkins case, Mr. Skeel asserted.

The federal law provided for a board to ascertain and declare “standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals.”

The Washington law creates a commission to establish such standards of wages for women “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.”

Construction of Law

The words “to be reasonable” in the Washington law were construed by counsel for the hotel as having “no reference to the value of the services” but to refer “solely to what the commission may consider adequate to supply the worker the necessary cost of living and to maintain her in health.”

“Is there no weight given to the fair value of the services?” asked Mr. Justice McReynolds.

“There is none,” was the answer.

Counsel for the hotel then discussed the Nebbia case wherein the Supreme Court sustained a New York statute empowering a board to fix the retail price of milk (291 U.S. 502). “The Nebbia case has no application to the case at bar,” Mr. Skeel declared. It was his opinion that “the element of a reasonable return and the interests of the public were expressly safeguarded in the Nebbia case,” whereas in the instant case “the standard is wholly confiscatory.”

Counsel concluded: “This case is not the New York case. This case is not the Ohio case. It is the Adkins case.”

Supporting Constitutionality

W. A. Toner, Assistant Attorney General of Washington, argued on behalf of the employee. At the outset of his argument he said: “The instant case presents a question of first impression and should be considered on its own merits. The Adkins case is not conclusive on us.”

The instant case is distinguishable from the other minimum wage cases that have come before the Court, he asserted, in that it involves “the hotel business which is a business affected with a public interest. As such it is subject to regulation.”

Mr. Justice Sutherland asked counsel: “What case holds that Congress or a state may fix the wages of employees though the business is affected with a public interest?”

Counsel cited the case of Wilson v. New, in which the Supreme Court upheld the Adamson Law of 1916 fixing the hours and relative to minimum wages of railroad employees (243 U.S. 332).

“That was a case of emergency,” remarked Mr. Sutherland.

“But,” replied counsel, “Your Honors have said that an emergency doesn’t change the rules of law.”

In the course of further discussion on this point, Mr. Justice Sutherland remarked that the “statute is general in its terms. It isn’t limited to businesses affected with a public interest. This Court cannot reconstruct the statute.”

With that statement counsel agreed, but contended that this case involves the validity of a minimum wage order as applied to a business affected with a public interest.

Since the hotel business is so affected, Mr. Toner maintained that “the presumption then is that the contractual interference is lawful.”

Creates Right of Civil Action

The present case further differs from the other minimum wage cases, counsel declared, in that the Washington law contains a provision giving the employee the right to bring a civil action against her employer if he pays her less than the prescribed minimum wage.

At this point Mr. Justice Sutherland wanted to know whether, “if without this provision the act is unconstitutional, does putting it in make it constitutional?”

The construction placed upon the Washington law by counsel for the hotel–that it does not take into consideration the reasonable value of the services of the employee–was conceded to be correct by counsel for the employee. He added, however, that, considering the law and the fact that there is no evidence thereon in the record, “it must be that the reasonable rate was also sufficient for the decent maintenance of the worker.”

Mr. Justice Stone was absent and did not hear the arguments. All the other members of the Court participated in the hearing. The case is entitled West Coast Hotel Co. v. Parrish, No. 293.