Holcombe v. Creamer

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation231 Mass. 99,120 N.E. 354
PartiesHOLCOMBE et al. v. CREAMER et al.
Decision Date23 September 1918


Report from Supreme Judicial Court, Suffolk County.

Petition by memebers of the Minimum Wage Commission to compel respondents, employers in laundry concerns, or officers of corporations engaged in the laundry business, to give evidence before the commission, as to wages paid by them to female employés in their laundries, so that the commission might determine whether the wages paid were in compliance with the minimum wage schedule established by the commission. On report to the full bench of the Supreme Judicial Court. Writ to issue.

Arthur D. Hill, John G. Palfrey, and Howard W. Brown, all of Boston, for petitioners.

E. Mark Sullivan and Sydney R. Wrightington, both of Boston, for respondents.


The question presented by this record is the constitutionality of St. 1912, c. 706, as amended by St. 1913, cc. 330 and 673, and St. 1914, c. 368, establishing the minimum wage commission. Sections 1 and 2 of the act regulate the appointment, compensation, clerical assistance and office accommodations of the commission. Section 3 states its duty to be

‘to inquire into the wages paid to the female employés in any occupation in the commonwealth, if the commission has reason to believe that the wages paid to a substantial number of such employés are inadequate to supply the necessary cost of living and to maintain the worker in health.’

Section 4 authorizes the commission, when of opinion after investigation that the wages of a substantial number of women in any occupation are thus inadequate, to form a wage board composed of an equal number of representatives of the employers and of the employés in the specified industry and of one or more representatives of the public, not exceeding one-half the number of representatives of either of the other parties. Section 5 empowers the commission to send to such wage board all pertinent information in its possession relative to the wages in the occupation in question, and requires that the wage board, after taking into consideration

‘the needs of the employés, the financial condition of the occupation and the probable effect thereon of any increase in the minimum wages paid, shall endeavor to determine the minimum wage, whether by time rate or piece rate, suitable for a female employé of ordinary ability in the occupation in question, or for any or all of the branches thereof, and also suitable minimum wages for learners and apprentices and for minors below the age of eighteen years. When two-thirds of the members of a wage board shall agree upon minimum wage determinations, they shall report such determinations to the commissions, together with the reasons therefor and the facts relating thereto, and also the names so far as they can be ascertained by the board, of employers who pay less than the minimum wage so determined.’

Section 6 directs the commission to review each report made by a wage board, empowering it to approve or to disapprove any or all of its determinations, or to recommit the subject to the same or a new wage board. If the commission approves any or all of the determinations of the wage board it shall then, after seasonable notice, give a public hearing to all employers paying less than the minimum wage thus tentatively approved. If, after such public hearing.

‘the commission finally approves the determination, it shall enter a decree of its findings and note thereon the names of employers, so far as they may be known to the commission, who fail or refuse to accept such minimum wage and to agree to abide by it.’

The commission shall publish a summary of its findings and its recommendations and the facts as it finds them to be as to the acceptance of its recommendations by employers in the given industry, together with the names of those adopting or refusing to follow such recommendations. By section 14 the commission is vested with power to reinvestigate these facts from time to time thereafter and to publish the names of employers failing to observe its recommendations. Any employer, who files a declaration under oath to the effect that compliance with the recommendations of the commission would render it impossible for him to conduct his business at a reasonable profit, shall be entitled to a review of such recommendations by the Supreme Judicial Court or the superior court according to equity procedure. If the court finds that the averments of the declaration are sustained, it may restrain the publication of the complainant's name, but not otherwise affect the determination of the commission. Section 8 provides for reinvestigation after a minimum wage has been established, with the same procedure as in an original inquiry. Section 9 authorizes the commission to issue special certificates for employment in certain instances to women physically defective. Section 10 confers upon the commission similar powers respecting wages paid to minors in any occupation in which the majority of employés are minors. Section 11 enjoins employers to keep registers of the names, addresses, occupation and weekly wages of women and minor employés and to submit them to the commission or director of the bureau of statistics on request. Section 12 relates to the gathering of statistics. Section 13 prohibits employers from discrimination against employés because of testifying or serving on a wage board or giving information concerning conditions of employment. Section 15 imposes a penalty upon ‘any newspaper refusing or neglecting to publish the findings, decrees and notices of the commission at its regular rates for the space taken,’ and section 16 exonerates the members of the commission and publishers of newspapers from actions for damages for publishing the names of employers in accordance with the act ‘unless such publication contains some wilfull misrepresentation.’

The facts in the case at bar are that proceedings were had in accordance with the terms of the act respecting wages paid female employés in laundries. A determination finally was made by the commission fixing a minimum weekly wage schedule varying according to experience in the work from $6 to $8. No review of this determination appears to have been sought in the courts. Publication thereof was made as provided in the act. Thereafter the commission proceeded to investigate wages actually paid to such employés in order to ascertain what employers were complying with its recommendations. The respondents, who are owners or officers of corporate owners of laundries, refused to furnish the required information. This proceeding is brought to compel them to do so.

It is manifest from the summary of its various provisions that the act is not mandatory as to rates of wages. It contains no words of compulsion upon either employer or employé. It does not restrain freedom of action by either employer or employé as to the wages to be paid or received. Any woman and her employer may make and enforce any agreement respecting compensation for her labor unhampered by any provision of the act. There is no constraint affecting property or conduct. The act does not purport to exercise any check with respect to liberty of contract, use of property, or management of business. The act does not require payment to any woman or minor of more than fair compensation, however small it may be. It does not prevent one or any number of women, who do not desire for any reason to earn their entire support by labor, from working for less wages than recommended by the commission. It does not prohibit any employer from contracting for the sevices of such women for any compensation mutually agreed upon. There may be divers reasons why such contracts may be wanted by working women, such as physical or mental weakness and consequent inability to earn the full wage, reliance upon other sources of income or support, and desire to work for short time in order that remaining hours may be devoted to study or other activities. These considerations are left to operate to their full extent without hindrance from the statute. The chief purpose of the act as gathered from its words is that there shall be an investigation as to facts, a statement of the conclusions drawn from those facts and a making public of those conclusions, all by or under the supervision of an administrative board. The utmost bound of the authority of the commission is to make recommendations. It cannot issue any orders. Although in several places in the act occur the words ‘decree’ and ‘decree of its findings,’ it is manifest that they signify only advisory suggestions and not authoritative directions. ‘Decree’ is not used in its judicial sense in the statute. It is the equivalent of a counsel succinctly stated. This is true also of the words ‘obeying its decree’ in section 14, where it is plain from the context that they mean only following its recommendations. In its strictly legal signification a decree is the formal expression of a final decision which can be issued only by a court clothed with jurisdiction to compel obedience to that decision by invoking the power of the state to that end, so far as necessary. The whole act shows that ‘decree’ used in this statute was not intended to have any such meaning.

Doubtless it is one aim of the act to bring to bear the force of public opinion in support of the acceptance of the recommendations of the commission. This may be a kind of coercion. But it can go no further than ascertained and published facts induce members of the public as individuals to the action of giving or withholding custom or patronage. The public money could not be expended for the support of the commission unless its functions related to a public as distinguished from a private matter. It hardly can be pronounced a matter utterly devoid of common interest to ascertain whether and to what extent substantial numbers...

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