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ERROR TO THE SUPREME COURT OF THE STATE OF
OREGON.
The peculiar value of a written constitution is that it places, in unchanging form, limitations upon legislative action, questions relating to which are not settled by even a consensus of public opinion; but when the extent of one of those limitations is affected by a question of fact which is debatable and debated, a widespread and long continued belief concerning that fact is worthy of consideration.
This court takes judicial cognizance of all matters of general knowledge -- such as the fact that woman's physical structure and the performance of maternal functions place her at a disadvantage which justifies a difference in legislation in regard to some of the burdens which rest upon her.
As healthy mothers are essential to vigorous offspring, the physical well-being of woman is an object of public interest. The regulation of her hours of labor falls within the police power of the State, and a statute directed exclusively to such regulation does not conflict with the due process or equal protection clauses of the Fourteenth Amendment.
The right of a State to regulate the working hours of women rests on the police power and the right to preserve the health of the women of the State, and is not affected by other laws of the State granting or denying to women the same rights as to contract and the elective franchise as are enjoyed by men.
While the general liberty to contract in regard to one's business and the sale of one's labor is protected by the Fourteenth Amendment that liberty is subject to proper restrictions under the police power of the State.
The statute of Oregon of 1903 providing that no female shall work in certain establishments more than ten hours a day is not unconstitutional so far as respects laundries.
48 Oregon, 252, affirmed.
THE facts, which involve the constitutionality
of the statute of Oregon limiting the hours of employment of women,
are stated in the opinion.
COUNSEL: Mr. William D. Fenton, with whom Mr.
Henry H. Gilfry was on the brief, for plaintiff in error:
Women, within the meaning of both the state
and Federal constitutions, are persons and citizens, and as such
are entitled to all the privileges and immunities therein provided,
and are as competent to contract with reference to their labor
as are men. In re Leach, 134 Indiana, 665; Minor v. Happerset,
21 Wall. 163; Lochner v. New York, 198 U.S. 45; First National
Bank v. Leonard, 36 Oregon, 390; II. B. & C. Ann. Codes &
Statutes of Oregon, §§ 5244, 5250.
The right to labor or employ labor and to make
contracts in respect thereto upon such terms as may be agreed
upon, is both a liberty and a property right, included in the
constitutional guarantee that no person shall be deprived of life,
liberty or property without due process of law. Cooley's Const.
Lim. (7th ed.), 889; Ex parte Kuback, 85 California, 274; Seattle
v. Smyth, 22 Washington, 327; Low v. Printing Co., 41 Nebraska,
127, 146; Richie v. People, 155 Illinois, 98, 104; Cleveland v.
Construction Co., 67 Ohio St. 197, 213, 219; Frorer v. People,
141 Illinois, 171, 181; Coal Co. v. People, 147 Illinois, 67,
71; State v. Goodwill, 33 W. Va. 179, 183; State v. Loomis, 115
Missouri, 307, 316; In re Morgan, 26 Colorado, 415; Lochner v.
New York, 198 U.S. 45, 53; State v. Buchanan, 29 Washington, 603;
State v. Muller, 48 Oregon, 252.
The law operates unequally and unjustly, and
does not affect equally and impartially all persons similarly
situated, and is therefore class legislation. Cases cited supra
and Bailey v. The People, 190 Illinois, 28; Gulf, Colo. &
S.F. Ry. Co. v. Ellis, 165 U.S. 150; Barbier v. Connolly, 113
U.S. 27; Soon Hing v. Crowley, 113 U.S. 703; Ex parte Northrup,
41 Oregon, 489, 493; In re Morgan, 26 Colorado, 415; In re House
Bill 203, 21 Colorado, 27; In re Eight Hour Bill, 21 Colorado,
29.
Section 3 of this act is unconstitutional in
this, that it deprives the plaintiff in error and his employes
of the right to contract and be contracted with, and deprives
them of the right of private judgment in matters of individual
concern, and in a matter in no wise affecting the general welfare,
health and morals of the persons immediately concerned, or of
the general public. Cases cited supra and In re Jacobs, 98 N.Y.
98; People v. Gillson, 109 N.Y. 389; Godcharles v. Wigeman, 113
Pa. St. 431, 437; Ramsey v. People, 142 Illinois, 380.
Conceding that the right to contract is subject
to certain limitations growing out of the duty which the individual
owes to society, the public, or to government, the power of the
legislature to limit such right must rest upon some reasonable
basis, and cannot be arbitrarily exercised. Ritchie v. People,
155 Illinois, 98, 106; State v. Loomis, 115 Missouri, 307; Ex
parte Kuback, 85 California, 274; City of Cleveland v. Construction
Co., 67 Ohio St. 197, 218; State v. Goodwill, 33 W. Va. 179, 182;
Lochner v. New York, 198 U.S. 48, 57.
The police power, no matter how broad and extensive,
is limited and controlled by the provisions of organic law. In
re Jacobs, 98 N.Y. 98, 108; People v. Gillson, 109 N.Y. 389; Civil
Rights Cases, 109 U.S. 11; Mugler v. Kansas, 123 U.S. 661; Tiedeman
on Lim. of Police Powers, §§ 3-86.
Women, equally with men, are endowed with the
fundamental and inalienable rights of liberty and property, and
these rights cannot be impaired or destroyed by legislative action
under the pretense of exercising the police power of the State.
Difference in sex alone does not justify the destruction or impairment
of these rights. Where, under the exercise of the police power,
such rights are sought to be restricted, impaired or denied, it
must clearly appear that the public health, safety or welfare
is involved. This statute is not declared to be a health measure.
The employments forbidden and restricted are not in fact or declared
to be, dangerous to health or morals. Cases cited supra and Wenham
v. State, 65 Nebraska, 395, 405; Tiedeman on Lim. of Police Power,
§ 86; 1 Tiedeman, State & Fed. Control of Persons and
Property, p. 335-337; Colon v. Lisk, 153 N.Y. 188, 197; People
v. Williams, 100 N.Y. Supp. 337; People v. Williams, 101 N.Y.
Supp. 562
Mr. H. B. Adams and Mr. Louis D. Brandeis for
defendant in error. Mr. John Manning, Mr. A. M. Crawford, Attorney
General of the State of Oregon, and Mr. B. E. Haney were on the
brief:
The legal rules applicable to this case are
few and are well established, namely:
The right to purchase or to sell labor is a part of the "liberty" protected by the Fourteenth Amendment of the Federal Constitution and this right to "liberty" is, however, subject to such reasonable restraint of action as the State may impose in the exercise of the police power for the protection of health, safety, morals and the general welfare. Lochner v. New York, 198 U.S. 45, 53, 67.
The mere assertion that a statute restricting
"liberty" relates, though in a remote degree, to the
public health, safety or welfare does not render it valid. The
act must have a "real or substantial relation to the protection
of the public health and the public safety." Jacobson v.
Massachusetts, 197 U.S. 11, 31. It must have "a more direct
relation, as a means to an end, and the end itself must be appropriate
and legitimate." Lochner v. New York, 198 U.S. 45, 56, 57,
61.
While such a law will not be sustained if it
has no real or substantial relation to public health, safety or
welfare, or that it is an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal
liberty or to enter into those contracts in relation to labor
which may seem to him appropriate or necessary for the support
of himself and his family, if the end which the legislature seeks
to accomplish be one to which its power extends, and if the means
employed to that end, although not the wisest or best, are yet
not plainly and palpably unauthorized by law, then the court cannot
interfere. In other words when the validity of a statute is questioned,
the burden of proof, so to speak, is upon those who assail it.
Lochner v. New York, 198 U.S. 45-68.
The validity of the Oregon statute must therefore
be sustained unless the court can find that there is no "fair
ground, reasonable in and of itself, to say that there is material
danger to the public health (or safety), or to the health (or
safety) of the employes (or to the general welfare), if the hours
of labor are not curtailed. Lochner v. New York, 198 U.S. 45,
61.
The Oregon statute was obviously enacted for
the purpose of protecting the public health, safety, and welfare.
Indeed it declares: that as the female employes in the various
establishments are not protected from overwork, an emergency is
hereby declared to exist.
The facts of common knowledge of which the
court may take judicial notice establish, conclusively, that there
is reasonable ground for holding that to permit women in Oregon
to work in a "mechanical establishment, or factory, or laundry"
more than ten hours in one day is dangerous to the public health,
safety, morals or welfare. Holden v. Hardy, 169 U.S. 366; Jacobson
v. Massachusetts, 197 U.S. 11; Lochner v. New York, 198 U.S. 481.
Mr. Louis D. Brandeis also submitted a separate
brief in support of the constitutionality of the law.
MR. JUSTICE BREWER delivered the opinion of
the court.
On February 19, 1903, the legislature of the
State of Oregon passed an act (Session Laws, 1903, p. 148), the
first section of which is in these words:
"SEC. 1. That no female (shall) be employed in any mechanical establishment, or factory, or laundry in this State more than ten hours during any one day. The hours of work may be so arranged as to permit the employment of females at any time so that they shall not work more than ten hours during the twenty-four hours of any one day."
Section 3 made a violation of the provisions of the prior sections
a misdemeanor, subject to a fine of not less than $10 nor more
than $25. On September 18, 1905, an information was filed in the
Circuit Court of the State for the county of Multnomah, charging
that the defendant "on the 4th day of September, A.D. 1905,
in the county of Multnomah and State of Oregon, then and there
being the owner of a laundry, known as the Grand Laundry, in the
city of Portland, and the employer of females therein, did then
and there unlawfully permit and suffer one Joe Haselbock, he,
the said Joe Haselbock, then and there being an overseer, superintendent
and agent of said Curt Muller, in the said Grand Laundry, to require
a female, to wit, one Mrs. E. Gotcher, to work more than ten hours
in said laundry on said 4th day of September, A.D. 1905, contrary
to the statutes in such cases made and provided, and against the
peace and dignity of the State of Oregon."
A trial resulted in a verdict against the defendant,
who was sentenced to pay a fine of $10. The Supreme Court of the
State affirmed the conviction, State v. Muller, 48 Oregon, 252,
whereupon the case was brought here on writ of error.
The single question is the constitutionality
of the statute under which the defendant was convicted so far
as it affects the work of a female in a laundry. That it does
not conflict with any provisions of the state constitution is
settled by the decision of the Supreme Court of the State. The
contentions of the defendant, now plaintiff in error, are thus
stated in his brief:
"(1) Because the statute attempts to prevent persons, sui juris, from making their own contracts, and thus violates the provisions of the Fourteenth Amendment, as follows:
"'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
"(2) Because the statute does not apply equally to all persons similarly situated, and is class legislation.
"(3) The statute is not a valid exercise of the police power. The kinds of work proscribed are not unlawful, nor are they declared to be immoral or dangerous to the public health; nor can such a law be sustained on the ground that it is designed to protect women on account of their sex. There is no necessary or reasonable connection between the limitation prescribed by the act and the public health, safety or welfare."
It is the law of Oregon that women, whether
married or single, have equal contractual and personal rights
with men. As said by Chief Justice Wolverton, in First National
Bank v. Leonard, 36 Oregon, 390, 396, after a review of the various
statutes of the State upon the subject:
"We may therefore say with perfect confidence that, with these three sections upon the statute book, the wife can deal, not only with her separate property, acquired from whatever source, in the same manner as her husband can with property belonging to him, but that she may make contracts and incur liabilities, and the same may be enforced against her, the same as if she were a femme sole. There is now no residuum of civil disability resting upon her which is not recognized as existing against the husband. The current runs steadily and strongly in the direction of the emancipation of the wife, and the policy, as disclosed by all recent legislation upon the subject in this State, is to place her upon the same footing as if she were a femme sole, not only with respect to her separate property, but as it affects her right to make binding contracts; and the most natural corollary to the situation is that the remedies for the enforcement of liabilities incurred are made coextensive and coequal with such enlarged conditions."
It thus appears that, putting to one side the
elective franchise, in the matter of personal and contractual
rights they stand on the same plane as the other sex. Their rights
in these respects can no more be infringed than the equal rights
of their brothers. We held in Lochner v. New York, 198 U.S. 45,
that a law providing that no laborer shall be required or permitted
to work in a bakery more than sixty hours in a week or ten hours
in a day was not as to men a legitimate exercise of the police
power of the State, but an unreasonable, unnecessary and arbitrary
interference with the right and liberty of the individual to contract
in relation to his labor, and as such was in conflict with, and
void under, the Federal Constitution. That decision is invoked
by plaintiff in error as decisive of the question before us. But
this assumes that the difference between the sexes does not justify
a different rule respecting a restriction of the hours of labor.
In patent cases counsel are apt to open the
argument with a discussion of the state of the art. It may not
be amiss, in the present case, before examining the constitutional
question, to notice the course of legislation as well as expressions
of opinion from other than judicial sources. In the brief filed
by Mr. Louis D. Brandeis, for the defendant in error, is a very
copious collection of all these matters, an epitome of which is
found in the margin. 1
Then follow extracts from over ninety reports
of committees, bureaus of statistics, commissioners of hygiene,
inspectors of factories, both in this country and in Europe, to
the effect that long hours of labor are dangerous for women, primarily
because of their special physical organization. The matter is
discussed in these reports in different aspects, but all agree
as to the danger. It would of course take too much space to give
these reports in detail. Following them are extracts from similar
reports discussing the general benefits of short hours from an
economic aspect of the question. In many of these reports individual
instances are given tending to support the general conclusion.
Perhaps the general scope and character of all these reports may
be summed up in what an inspector for Hanover says: "The
reasons for the reduction of the working day to ten hours -- (a)
the physical organization of women, (b) her maternal functions,
(c) the rearing and education of the children, (d) the maintenance
of the home -- are all so important and so far reaching that the
need for such reduction need hardly be discussed."
While there have been but few decisions bearing
directly upon the question, the following sustain the constitutionality
of such legislation: Commonwealth v. Hamilton Mfg. Co., 120 Massachusetts,
383; Wenham v. State, 65 Nebraska, 394, 400, 406; State v. Buchanan,
29 Washington, 602; Commonwealth v. Beatty, 15 Pa. Sup. Ct. 5,
17; against them is the case of Ritchie v. People, 155 Illinois,
98.
The legislation and opinions referred to in
the margin may not be, technically speaking, authorities, and
in them is little or no discussion of the constitutional question
presented to us for determination, yet they are significant of
a widespread belief that woman's physical structure, and the functions
she performs in consequence thereof, justify special legislation
restricting or qualifying the conditions under which she should
be permitted to toil. Constitutional questions, it is true, are
not settled by even a consensus of present public opinion, for
it is the peculiar value of a written constitution that it places
in unchanging form limitations upon legislative action, and thus
gives a permanence and stability to popular government which otherwise
would be lacking. At the same time, when a question of fact is
debated and debatable, and the extent to which a special constitutional
limitation goes is affected by the truth in respect to that fact,
a widespread and long continued belief concerning it is worthy
of consideration. We take judicial cognizance of all matters of
general knowledge.
It is undoubtedly true, as more than once declared
by this court, that the general right to contract in relation
to one's business is part of the liberty of the individual, protected
by the Fourteenth Amendment to the Federal Constitution; yet it
is equally well settled that this liberty is not absolute and
extending to all contracts, and that a State may, without conflicting
with the provisions of the Fourteenth Amendment, restrict in many
respects the individual's power of contract. Without stopping
to discuss at length the extent to which a State may act in this
respect, we refer to the following cases in which the question
has been considered: Allgeyer v. Louisiana, 165 U.S. 578; Holden
v. Hardy, 169 U.S. 366; Lochner v. New York, 198 U.S. 45.
That woman's physical structure and the performance
of maternal functions place her at a disadvantage in the struggle
for subsistence is obvious. This is especially true when the burdens
of motherhood are upon her. Even when they are not, by abundant
testimony of the medical fraternity continuance for a long time
on her feet at work, repeating this from day to day, tends to
injurious effects upon the body, and as healthy mothers are essential
to vigorous offspring, the physical well-being of woman becomes
an object of public interest and care in order to preserve the
strength and vigor of the race.
Still again, history discloses the fact that
woman has always been dependent upon man. He established his control
at the outset by superior physical strength, and this control
in various forms, with diminishing intensity, has continued to
the present. As minors, though not to the same extent, she has
been looked upon in the courts as needing especial care that her
rights may be preserved. Education was long denied her, and while
now the doors of the school room are opened and her opportunities
for acquiring knowledge are great, yet even with that and the
consequent increase of capacity for business affairs it is still
true that in the struggle for subsistence she is not an equal
competitor with her brother. Though limitations upon personal
and contractual rights may be removed by legislation, there is
that in her disposition and habits of life which will operate
against a full assertion of those rights. She will still be where
some legislation to protect her seems necessary to secure a real
equality of right. Doubtless there are individual exceptions,
and there are many respects in which she has an advantage over
him; but looking at it from the viewpoint of the effort to maintain
an independent position in life, she is not upon an equality.
Differentiated by these matters from the other sex, she is properly
placed in a class by herself, and legislation designed for her
protection may be sustained, even when like legislation is not
necessary for men and could not be sustained. It is impossible
to close one's eyes to the fact that she still looks to her brother
and depends upon him. Even though all restrictions on political,
personal and contractual rights were taken away, and she stood,
so far as statutes are concerned, upon an absolutely equal plane
with him, it would still be true that she is so constituted that
she will rest upon and look to him for protection; that her physical
structure and a proper discharge of her maternal functions --
having in view not merely her own health, but the well-being of
the race -- justify legislation to protect her from the greed
as well as the passion of man. The limitations which this statute
places upon her contractual powers, upon her right to agree with
her employer as to the time she shall labor, are not imposed solely
for her benefit, but also largely for the benefit of all. Many
words cannot make this plainer. The two sexes differ in structure
of body, in the functions to be performed by each, in the amount
of physical strength, in the capacity for long-continued labor,
particularly when done standing, the influence of vigorous health
upon the future well-being of the race, the self-reliance which
enables one to assert full rights, and in the capacity to maintain
the struggle for subsistence. This difference justifies a difference
in legislation and upholds that which is designed to compensate
for some of the burdens which rest upon her.
We have not referred in this discussion to
the denial of the elective franchise in the State of Oregon, for
while it may disclose a lack of political equality in all things
with her brother, that is not of itself decisive. The reason runs
deeper, and rests in the inherent difference between the two sexes,
and in the different functions in life which they perform.
For these reasons, and without questioning
in any respect the decision in Lochner v. New York, we are of
the opinion that it cannot be adjudged that the act in question
is in conflict with the Federal Constitution, so far as it respects
the work of a female in a laundry, and the judgment of the Supreme
Court of Oregon is
Affirmed.
---- Begin EndNotes ----
1 n1 The
following legislation of the States impose restrictions in some
form or another upon the hours of labor that may be required of
women: Massachusetts: chap. 221, 1874, Rev. Laws 1902, chap. 106,
§ 24; Rhode Island: 1885, Acts and Resolves 1902, chap. 994,
p. 73; Louisiana: § 4, Act 43, p. 55, Laws of 1886, Rev.
Laws 1904, vol. 1, p. 989; Connecticut: 1887, Gen. Stat. revision
1902, § 4691; Maine: chap. 139, 1887, Rev. Stat. 1903, chap.
40, § 48, p. 401; New Hampshire: 1887, Laws 1907, chap. 94,
p. 95; Maryland: chap. 455, 1888, Pub. Gen. Laws 1903, art. 100,
§ 1; Virginia: p. 150,1889-1890, Code 1904, tit. 51A, chap.
178A, § 3657b; Pennsylvania: No. 26, p. 30, 1897, Laws 1905,
No. 226, p. 352; New York: Laws 1899, § 1, chap. 560, p.
752, Laws 1907, chap. 507, § 77, subdiv. 3, p. 1078; Nebraska:
1899, Comp. Stat. 1905, § 7955, p. 1986; Washington: Stat.
1901, chap. 68, § 1, p. 118: Colorado: Acts 1903, chap. 138,
§ 3, p. 310; New Jersey: 1892, Gen. Stat. 1895, p. 2350,
§§ 66, 67; Oklahoma: 1890, Rev. Stat. 1903, chap. 25,
art. 58, § 729; North Dakota: 1877, Rev. Code 1905, §
9440; South Dakota: 1877, Rev. Code (Penal Code, § 764),
p. 1185; Wisconsin: § 1, chap. 83, Laws of 1867, Code 1898,
§ 1728; South Carolina: Acts 1907, No. 233, p. 487.
In foreign legislation Mr. Brandeis
calls attention to these statutes: Great Britain: Factories Act
of 1844, chap. 15, pp. 161, 171; Factory and Workshop Act of 1901,
chap. 22, pp. 60, 71; and see 1 Edw. VII, chap. 22. France, 1848;
Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus,
1848; Federal Law 1877, art. 2, § 1. Austria, 1855; Acts
1897, art. 96a, §§ 1-3. Holland, 1889; art. 5, §
1. Italy, June 19, 1902, art. 7. Germany, Laws 1891.
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