Allied Theatres of New England, Inc. v. Commissioner of Labor & Industries

• Decision Date: 02 March 1959
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ALLIED THEATRES OF NEW ENGLAND, INC. et al. v. COMMISSIONER OF LABOR & INDUSTRIES, et al.

Page 424

156 N.E.2d 424

338 Mass. 609

ALLIED THEATRES OF NEW ENGLAND, INC. et al. v. COMMISSIONER OF LABOR & INDUSTRIES, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1959.

Decided March 2, 1959.

James C. Gahan, Jr., Boston, for plaintiffs.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

This is a petition by five theatre operators to review a decision of the respondent commissioner of labor and industries promulgating a minimum wage order. G.L. c. 151, § 14 (as amended through St.1947, c. 432, § 1). Other respondents are the assistant commissioner, and the three associate commissioners constituting the minimum wage commission defined in G.L. c. 151, § 2 (as amended through St.1954, c. 174).

The procedure for promulgating a minimum wage order appears in G.L. c. 151. If the commissioner is of the opinion that any substantial number of persons in an occupation are receiving oppressive or unreasonable wages, he shall direct the commission to appoint a wage board (§ 4). The board shall be composed of not more than three persons to represent the employers, of an equal number to represent the employees, and of not more than three disinterested persons to represent the public. The representatives of the employers and the representatives of the employees are to be selected so far as practicable from nominations submitted by employers and employees, respectively (§ 5). After receiving information from the commissioner and hearing witnesses (§ 6), the board shall submit a report (§ 7). Following a public hearing, the commission must approve or disapprove the report. If approved, the commissioner issues a mandatory order (§ 8).

The allegations of the petition, summarily stated, were that the minimum wage board was illegally constituted; that the board did not conduct its proceedings in various specified respects in accordance with c. 151; that the evidence did not warrant the wages recommended; that the wage schedule ordered did not comply with c. 151, § 2; and that the commission 'was subject to but did not conduct its proceedings in accordance with' G.L. c. 30A, inserted by St.1954, c. 681, § 1, the State administrative procedure act. The respondents demurred, in substance for legal insufficiency. The petitioners appealed from an interlocutory decree sustaining the demurrer and from a final decree dismissing the petition.

The record discloses no specific reason for the judge's action. The respondents who prevailed, have filed no brief, and apparently agree with the statement in the petitioners' brief that the only conceivable objection to the petition must be that after the enactment of the State administrative procedure act the procedure set forth in c. 151, § 14, can no longer be followed. Chapter 30A, however, did not expressly repeal c. 151, § 14. Neither did it do so by implication. Two sections of c. 30A deal with judicial review, § 7 as to regulations, and § 14 as to adjudicatory proceedings.

Section 7 provides: 'Unless an exclusive mode of review is provided by law, judicial review of...