Stettler v. O'Hara

• Citation: 69 Or. 519,139 P. 743
• Parties: STETTLER v. O'HARA ET AL., INDUSTRIAL WELFARE COMMISSION.
• Decision Date: 17 March 1914
• Court: Supreme Court of Oregon

139 P. 743

69 Or. 519

STETTLER v. O'HARA ET AL., INDUSTRIAL WELFARE COMMISSION.

Supreme Court of Oregon

March 17, 1914

In Banc.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

Suit by Frank C. Stettler against Edwin O'Hara and others constituting the Industrial Welfare Commission of the state of Oregon, to vacate and annul an order of the commission and enjoin its enforcement. From a decree for defendants plaintiff appeals. Affirmed.

On February 17, 1913, the legislative assembly passed an act entitled "To protect the lives and health and morals of women and minor workers, and to establish an Industrial Welfare Commission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act." The title is followed by a declaration of the evils that it is desired to remedy, as follows: "Whereas, the welfare of the state of Oregon requires that women and minors should be protected from conditions of labor which have a pernicious effect on their health and morals, and inadequate wages and unduly long hours and unsanitary conditions of labor have such a pernicious effect; therefore, be it enacted by the people of the state of Oregon." The first section provides "It shall be unlawful to employ women or minors in any occupation within the state of Oregon for unreasonably long hours; and it shall be unlawful to employ women or minors in any occupation within the state of Oregon under such surroundings or conditions--sanitary or otherwise--as may be detrimental to their health or morals; and it shall be unlawful to employ women in any occupation within the state of Oregon for wages which are inadequate to supply the necessary cost of living and to maintain them in health; and it shall be unlawful to employ minors in any occupation within the state of Oregon for unreasonably low wages." Then follows the creation of the commission under the name of "Industrial Welfare Commission," to be appointed by the Governor, and provisions defining its duties. Section 4 provides: "Said commission is hereby authorized and empowered to ascertain and declare, in the manner hereinafter provided, the following things: (a) Standards of hours of employment for women or for minors and what are unreasonably long hours for women or for minors in any occupation within the state of Oregon; (b) standards of conditions of labor for women or for minors in any occupation within the state of Oregon and what surroundings or conditions--sanitary or otherwise--are detrimental to the health or morals of women or of minors in any such occupation; (c) standards of minimum wages for women in any occupation within the state of Oregon and what wages are inadequate to supply the necessary cost of living to any such women workers and to maintain them in good health; and (d) standards of minimum wages for minors in any occupation within the state of Oregon and what wages are unreasonably low for any such minor workers." Section 8 provides, among other things, that the "commission may call and convene a conference for the purpose and with the powers of considering and inquiring into and reporting on the subject investigated by said commission and submitted by it to such conference. Such conference shall be composed of not more than three representatives of the employers in said occupation and of an equal number of the representatives of the employees in said occupation and of not more than three disinterested persons representing the public and of one or more commissioners," and the duties of such conference, which shall report the result of its investigations with recommendations to the commission. Section 9 provides that, upon the receipt of the report from the conference, and the approval of its recommendations, the commission may make and render such order as may be proper or necessary to adopt such recommendations, and to carry the same into effect, and require all employers in the occupation affected thereby to observe and comply with such recommendations and said order. The act contains other provisions giving the commission and conference power and authority to investigate the matters being considered, and that, from the matters so determined by the commission, there shall be no appeal on any question of fact, but that there shall be a right of appeal from the commission to the circuit court from any ruling or holding on a question of law included or embodied in any decision or order by the commission, and from the circuit court to the Supreme Court. The defendants were duly appointed by the Governor as such commission. It thereafter called a conference as provided, which reported to the commission, making certain recommendations, which were approved, and based upon such recommendations it made the following order: "The Industrial Welfare Commission of the state of Oregon hereby orders that no person, firm, corporation, or association owning or operating any manufacturing establishment in the city of Portland, Oregon, shall employ any woman in said establishment for more than nine hours a day, or fifty hours a week; or fix, allow, or permit for any woman employé in said establishment a noon lunch period of less than forty-five minutes in length; or employ any experienced adult woman worker, paid by time rates of payment, in said establishment at a weekly wage of less than $8.64, any lesser amount being hereby declared inadequate to supply the necessary cost of living to such woman factory workers, and to maintain them in health." The amended complaint sets out all these matters in greater detail, to which the defendants demurred on various grounds, the first of which raises the questions here discussed, namely: That "it does not state facts showing that the act and order complained of is an unreasonable exercise of the police power of the state." The demurrer was sustained, and the plaintiff elected to stand on the amended complaint. Judgment was rendered dismissing the suit, and the plaintiff appeals.

C. W. Fulton, of Portland (Fulton & Bowerman, of Portland, on the brief), for appellant. A. M. Crawford, Atty. Gen., and Dan J. Malarkey, of Portland (Walter H. Evans, Dist. Atty., and Malarkey, Seabrook & Dibble, all of Portland, on the brief), for respondents. Joseph N. Teal, of Portland, on the brief, amicus curiae, representing Consumer's League. Rome G. Brown, of Minneapolis, Minn., filed a brief as amicus curiae.

EAKIN, J. (after stating the facts as above).

The purpose of this suit is to have determined judicially whether either the fourteenth amendment of the federal Constitution or section 20, art. 1, of the Oregon Constitution is an inhibition against the regulation by the Legislature of the hours of labor during which women may be employed in any mechanical or manufacturing establishment, mercantile occupation, or other employment requiring continuous physical labor, or against the establishment of a minimum wage to be paid therefor. Some features of these questions are practically new in the courts of this country. There have been some utterances by the courts of last resort to the effect that it is such an inhibition. Some of these cases relate exclusively to the limitation of the hours of employment, others to the wages to be paid on contracts with the state or municipality; but the cases so holding are based largely on the fact that such regulation deprives the individual of liberty and property without due process of law, namely: That it is not within the police power of the state, and violates the liberty of contract. The first case holding such a statute unconstitutional is Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, annotated in 3 Ann. Cas. 1133. A similar case is Ritchie v People, 155 Ill. 98, 40 N.E. 454, 29 L. R. A. 79, 46 Am St. Rep. 315. In the former case, in the appellate division of the state court, two of five judges were in favor of upholding the law; in the Supreme Court of the state three of the seven judges were so minded; and in the United States court four of the nine judges favored such a disposition of the case. The opinions in those decisions are based upon very different theories, showing that judicial opinion has not reached any settled or stable basis upon which to rest. It has only been during the last few years that the matter of legislation upon the question of the limitation of hours of labor has been agitated in legislative bodies or in the courts. The decisions of the courts have been based upon first impression, and may be liable to fluctuation from one extreme to the other before the extent of the power of legislation on these questions is finally settled. The entry of woman into the realm of many of the employments formerly filled by man, in which she attempts to compete with him, is a recent innovation, and it has created a condition which the Legislatures have deemed it their duty to investigate, and to some extent to govern. It is conceded by all students of the subject, and they are many, and their writings extensive, that woman's physical structure and her position in the economy of the race renders her incapable of competing with man either in strength or in endurance. This is well emphasized by Justice Brewer in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann. Cas. 957, an appeal from Oregon questioning the constitutionality of the law fixing the maximum hours of labor for woman, where he says: "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...