McGrew v. Industrial Commission

Decision Date14 December 1938
Docket Number5981
CourtUtah Supreme Court

Suit by E. P. McGrew, doing business as Crystal Palace Drug, and others against the Industrial Commission of Utah to enjoin the enforcement of an order fixing a minimum wage and maximum hours for women and minors engaged in the retail trade.


Cause remanded to the Industrial Commission.

Shirley P. Jones and Bagley, Judd, Ray & Nebeker, all of Salt Lake City, for plaintiffs.

Joseph Chez, Atty. Gen., and S.D. Huffaker, Deputy Atty. Gen., for defendants.

LARSON Justice. FOLLAND, C. J., and HANSON and MOFFAT, JJ., WOLFE Justice, concurring.


LARSON, Justice.

By this action the plaintiffs seek to have the Utah Minimum Wage Law declared void. They bring this action to enjoin the Industrial Commission from enforcing its order fixing a minimum wage and maximum hours for women and minors engaged in the retail trades. The Utah Minimum Wage Law was enacted by the legislative session of 1933 (Chapter 38, Laws of Utah 1933), but for want of funds no effort was made to put it into operation until 1937. After some investigations and informal hearings the Commission made and entered its "Mandatory Order Number One," covering women and minors in the Retail Trade Occupation. The order provided inter alia that seven (7) hours constitute a standard day; and forty-two and one-half (42 1/2) hours, one standard week, thus allowing for one maximum day per week of seven and one half (7 1/2) hours; a minimum weekly wage of $ 16 per week was fixed for women and minors, effective as to boys only under 18 years of age. Various other provisions, mostly regulatory, were provided in the order but they will be referred to only as necessary in the course of the opinion. Plaintiffs, consisting of more than 120 small retail merchants, ask us to void and enjoin enforcement of "Mandatory Order Number One," on the grounds:

(a) That the Minimum Wage Law is in violation of the provisions of the Constitution of the State of Utah, in that it deprives them of property without due process of law, and interferes unreasonably with the freedom of contract;

(b) That the procedure leading up to and resulting in the issuance of Mandatory Order Number One, was insufficient, and the order therefore void.

We note them in order.

Does the minimum wage law deprive plaintiffs of property without due process of law? Does it deprive them of property at all? We are certain it does not. The word "property" although in common parlance applied to a tract of land or a chattle, to a physical thing, means in its legal signification only the rights of the owner in relation to it. Property is the right of any person to possess, use, enjoy and dispose of a thing. The term "property" is often used to indicate the res, or subject of the property rather than the property itself. Rigney V. Chicago, 102 Ill. 64, 77. "The words 'life,' 'liberty,' and 'property' are constitutional terms, and are to be taken in their broadest sense. They indicate the three great subdivisions of all civil right. The term 'property,' in this clause, embraces all valuable interests which a man may possess outside of himself; that is to say, outside of his life and liberty. It is not confined to mere tangible property but extends to every species of vested right." Campbell V. Holt, 115 U.S. 620, 6 S.Ct. 209, 214, 29 L.Ed. 483; Board of Education V. Blodgett, 155 Ill. 441, 40 N.E. 1025, 31 L.R.A. 70, 46 Am. St. Rep. 348. Material objects therefore are often spoken of as property because they are impressed by the laws and usages of society with certain qualities, among which are fundamentally the right of the occupant to use and enjoy them exclusively, and his absolute power to sell and dispose of them; and as property consists in the impression of these qualities upon material things, whatever removes the qualities interferes with property though the material things are not disturbed or touched. Thus one may be said to have a special property in his profession or calling by means of which he makes his support, and he can be deprived of it only by due process of law. Blair V. Ridgely, 41 Mo. 63, 173, 97 Am. Dec. 248. We refer to this because it is necessary to keep this broad and true meaning of property in mind when considering the constitutional questions here presented. The right to work, the right to engage in gainful occupations, the right to receive compensation for one's work are essentially property rights. So too is the right to enjoy the benefits resulting from the work of one so employed. So also the right to engage in commerce or in legitimate business is property. But no man can have a vested interest in the work or labor of another. He has no right in law to insist that another must work for him. Such right would amount to involuntary servitude or slavery and be in violation of Section 21 of Article 1 of the State Constitution. Labor is not a mere commodity to be bought and sold upon the market but is part of the warp and woof of the life of the laborer. The employer is entitled to have, to own, and use the result of the effort, energy and toil of his employee. That right is his property. But the activity exerted, the energy used, the strength expended and the skill applied belong to the workman. They are part of his body, part of his life and can neither be bought nor sold. One's body and life are his own and he cannot be required to yield up either except at his own desire, the call of his country, or the decree of his God. In and to those things no one else can acquire any rights whatsoever. An employer therefore can have no vested right in the work or labor of any other person or group or class of persons. His right as an employer is merely the right to receive the usufruct or benefits or results of the efforts of such persons as he may induce to work at his establishment or place of business within the limitations laid down by the law. Under the minimum wage law he is not required to employ any one; he is not forbidden to employ any one; he is not required to pay any set wage or to have people work any set number of hours. He is merely forbidden to work any woman or minor under eighteen years of age more than seven hours per day or 42 and 1/2 hours per week or to pay them at less than $ 16 per week. It is clear that no property right is taken from the employer.

How stands it as to the employee? In the first place no employee is complaining and it is elemental that one cannot question the validity of a legislative act until or unless he is affected thereby. For a plaintiff to have standing in court his rights must be affected or threatened. However it is evident that the law does not take from a workman the right to seek employment, to work, to receive compensation therefor or to expend his energy, effort, time or toil, in any legitimate enterprise for himself or for any other person. It merely requires the employer to pay the workman at least a living wage and to only work him a reasonable time each day to earn such wage. This Act therefore is not subject to the objection that it takes property either with or without due process of law, Const. art. 1, § 7. No property right is involved.

It is next asserted that even if the Act does not affect rights under a contract it limits and deprives persons of the right to make a contract and is therefore void. The right to make or enter into a contract is not an economic right; it is not property. It is a right that is non-salable, non-assignable, non-transferable and non-alienable. It inheres in the individual and can be exercised only by him. The rights accruing under a made contract are property but the right to make a contract is not property. It is a matter of civil or political liberty and comes under the liberty provision of the due process clause of the constitution and under the property provision. This is recognized by the hackneyed expression, "liberty of contract." Dennis V. Moses, 18 Wash. 537, 52 P. 333, 40 L.R.A. 302.

Does the Minimum Wage Law unlawfully interfere with this "freedom or liberty of contract"? "Contract" is not mentioned in the section we have under consideration. It comes into the matter from giving to the word "liberty" the meaning of the "right to do what one wants to do." In such meaning practically all laws are interferences with liberty. But liberty as used in the constitution is the right to enjoy to the fullest extent the privileges and immunities given or assured by law to people living within the country and under a government which "derives its just powers from the consent of the governed," subject only to such restrictions as may be imposed by law for the benefit of the whole, within the limits of a written constitution and to a like liberty on the part of the other members of body public. That the State may impose limitations and regulations on the right to contract has never been questioned but the question as to how far the State may go has been raised often. Many laws restricting this right have been upheld. The one most commonly called to mind is the Usury Law which prohibits contracts by which a man may receive more than a specified rate of interest for the money he lends. Many Sunday laws prohibit all contracts made on Sunday, one seventh of our natural life. Insurance rates and policy terms are regulated. Telephone charges, railroad rates, power, light, and gas rates are not only controlled and limited but prescribed and fixed by law. Utah Copper Company V. Public Utilities Commission, 59 Utah 191, 203 P. 627; Salt Lake City V. Utah Light & Traction Company, 52 Utah 210, 173 P. 556, 3 A.L.R. 715; Union Portland Cement Co. V. ...

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