Withey v. Bloem

• Decision Date: 07 December 1910
• Citation: 128 N.W. 913,163 Mich. 419
• Parties: WITHEY et al. v. BLOEM, Deputy Factory Inspector, et al.
• Court: Michigan Supreme Court

163 Mich. 419

128 N.W. 913

WITHEY et al.

v.BLOEM, Deputy Factory Inspector, et al.

Supreme Court of Michigan.

Dec. 7, 1910.

Appeal from Circuit Court, Barry County, in Chancery; Clement Smith, Judge.

Suit by Hattie Withey, Bernice Bennett, Etta Bennett, Frances Hart, Helen Knapp, International Lock Company, and Aben E. Johnson against Isaac Bloem, Deputy Factory Inspector, and Richard H. Fletcher, Commissioner of Labor. From a decree for plaintiffs, defendants appeal. Reversed.

Argued before OSTRANDER, MOORE, McALVAY, BROOKE, and BLAIR, JJ. Franz C. Kuhn, Atty. Gen., and Charles W. McGill, Asst. Atty. Gen., for appellants.

Beaumont, Smith & Harris and Colgrove & Potter, for appellees.

MOORE, J.

The International Seal & Lock Company is a corporation engaged in manufacturing large quantities of seals which are used by railroad companies and shippers of freight for the purpose of locking the doors of freight cars. Aben E. Johnson is an assistant to the general manager of the factory of the said corporation, and the other complainants are women employed by said corporation in its factory. The Legislature of 1909 passed an act entitled: ‘An act to provide for the creation of a department of labor; to prescribe its powers and duties; to regulate the employment of labor; to make an appropriation for the maintenance of such department and to prescribe penalties for the violation of this act.’ Laws 1909, No. 285. Section 9 of said act provides, in part, that: ‘No female shall be employed in any factory, mill, warehouse, workshop, clothing, dressmaking or millinery establishment, or any place where the manufacture of any kind of goods is carried on, or where any goods are prepared for manufacturing, or in any laundry, store, shop or any other mercantile establishment, for a period longer than an average of nine hours in the day or fifty-four hours in any week nor more than ten hours in any one day: Provided, however, That the provisions of this section in relation to the hours of employment shall not apply to nor affect any person engaged in preserving perishable goods in fruit and vegetable canning establishments.’ The complainants filed a bill of complaint in chancery asking to have the provisions of section 9 and section 54 of said act held unconstitutional. The defendants filed a demurrer to the bill of complaint. The demurrer was overruled by the trial court for the reason that the proviso in section 9 was class legislation. The defendants have appealed to this court.

It is not claimed the act is contrary to the provisions of the Constitution of this state because section 29 of article 5 of the Revised Constitution of the state of Michigan reads as follows: ‘The Legislature shall have power to enact laws relative to the hours and conditions under which women and children may be employed.’ It is claimed as follows (we quote from brief of counsel): ‘(a) The law violates the fourteenth amendment to the Constitution of the United States, unless it can be defined as a ‘health’ law. (b) The law does not purport to be a ‘health’ law, or to be passed to meet an emergency and to protect the health of women. (c) The law, therefore, if sustained at all, must be sustained on the theory that labor at any employment by women for more than an average of nine hours is harmful, and that a law so restricting female labor is a reasonable exercise of the police power. (d) The law is, however, void as class legislation, since it discriminates between the various classes of female labor.' Counsel subdivide each of these heads and argue them at length, citing many authorities which they claim apply.

It must be conceded at the outset that the courts have differed about the question involved. The most marked difference, however, is between the earlier decisions and the later ones. In Bierly on Police Power, p. 9, it is said: ‘The police power has been defined to be devoted to the protection of the lives, health, and property of citizens and the maintenance of good order. It is the power of the state to make all manner of reasonable laws for the welfare of the commonwealth and the good people thereof.’ In Russell on Police Power, at page 28, it is said that ‘the range of legislation with respect to subjects of governmental control in the exercise of the police power has been much extended within the last quarter of a century. The reason for this is obvious. Modern social life has called into being many agencies not heretofore existing.’ The learned author then gives many instances of its exercise, among them in the prevention of diseases, the public health, and concerning hours of labor, and forbidding or regulating contracts for the labor of women and children. The author expresses the opinion that, ‘with reference to many of the matters above named, there has been a progressive development of governmental functions, and this development is likely to continue with the increased application of science to the business of life.’

From what we have quoted from the brief of counsel it is evidence that two important questions are presented: First, is the legislation in violation of the fourteenth amendment to the Constitution of the United States because it interferes with the right to labor and to make contracts in relation thereto? Second, is it class legislation?

In support of the first proposition, counsel cite a number of authorities, one of which (Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937) they regard of so much importance that they quote from it at great length in the brief. A consultation of the opinion shows that the labor law which was before the court was not legislation in the interest of women or of minors, but applied to all employés of bakeries. The court said of the legislation which was then before it that the limit of the police power was reached and passed, and that the case differs widely from Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, and Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643. In the course of the opinion Justice Peckham, speaking for the court, used the following language: ‘The general right to make a contract in relation to his business is part of the liberty of the individual protected by the fourteenth amendment of the federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. 427, 41 L. Ed. 832]. Under the provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed ‘police powers,’ the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the fourteenth amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623 [8 Sup. Ct. 273, 31 l. Ed. 205]; In re Kemmler, 136 U. S. 436 [10 Sup. Ct. 930, 84 L. Ed. 519]; Crowley v. Christensen, 137 U. S. 86 [11 Sup. Ct. 13, 34 L. Ed. 620];In re Converse, 137 U. S. 624 [11 Sup. Ct. 191, 34 L. Ed. 796]. The state therefore has power to prevent the individual from making certain kinds of contracts, and in regard to them the federal Constitution offers no protection. If the contract be one which the state, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the fourteenth amendment.'

In Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, which involved the construction of a statute relating to the hours of labor of women employed in laundries, Justice Brewer, who wrote the opinion, referred to the case of Lochner v. New York, supra, as follows: ‘We held, in Lochner v. New York, 198 U. S. 45 [25 Sup. Ct. 539, 49 L. Ed. 937], that a law providing that no laborer shall be required or permitted to work in a bakery more than 60 hours in a week or 10 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.’ He also referred to a copious collection of data as to the course of legislation and expressions in relation to the restrictions imposed upon the labor of women, and proceeds as follows: ‘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 Mass. 383;Wenham v. State, 65 Neb. 394, 400, 406 [91 N. W. 421,58 L. R. A. 825];State v. Buchanan, 29 Wash. 602 [70 Pac. 52,59 L. R. A. 342, 92 Am. St. Rep. 930];Commonwealth v. Beatty, 15 Pa. Super. Ct. 5, 17. Against them is the case of Ritchie v. People, 155 Ill. 98 [40 N. E. 454,29 L. R. A. 79, 46 Am. St. Rep. 315]. 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...