State v. Crowe ( 1917 )

HART, J.

There is drawn in controversy in this case the validity of Act No. 191 of the General Assembly of 1915 (page 781) entitled, “An Act to regulate the hours of labor, safeguard the health and establish a minimum wage for females in the State of Arkansas.”

The controversy arises only as to the validity of that part of the statute which relates to the fixing of minimum wages. It is contended, in the first place, that the statute was not legally enacted in that when the final vote was taken in the Senate the ayes and nays were not recorded on the journal, as required by section 21, article 5, of the Constitution.

The first section of the statute, as appears from the enrolled bill, signed by the presiding officer of each house and the Governor, specifies, among the employers of female labor to be regulated ‘ ‘ any manufacturing, mechanical or mercantile establishment.” Section 7 refers to employers specified in section 1, and prescribes a minimum wage of female workers in the establishments mentioned.

The bill as originally introduced in the Senate contained the language quoted above, which was never changed in the passage of the bill through the two houses, although there were numerous amendments. The Senate passed the bill on February 25, 1915, and transmitted it to thé House, where several amendments were adopted, and the House passed the bill as amended on March 10, 1915, and sent it back to the Senate. On receipt of the bill the Senate, according to the recitals of the journal, read each amendment twice and concurred in the same, and ordered the bill engrossed as amended, and made a special order for the next day. None of the votes by which amendments were concurred in were taken by the ayes and nays recorded on the journal, but on the next day (March 11,1915) a vote by ayes and nays was taken on the éngrossed bill and the names of those voting were spread upon the journal, it appearing therefrom that a large majority voted in the affirmative. In the engrossment of the bill the word “mercantile” was omitted, and that word was not contained in the engrossed copy which was before the Senate when the vote by ayes and nays was taken. It is clear that the omission of the word was merely an inadvertence, for, as before stated, the bill had never been changed so far as concerns the use of that word. The bill was enrolled with the word ‘ ‘ mercantile ’ ’ in it, and in that form was duly signed by the presiding officers of the two houses and the Governor.

(1) The contention of those attacking the validity of the statute is that a final vote on the passage of the bill in the Senate after the concurrence in the amendments was necessary to the enactment of the statute, and that since the word “mercantile” was omitted from the copy which the Senate finally voted on, it was not the bill which had been passed by the house. This contention, we think, is unsound. The word ‘ ‘ mercantile ’ ’ was in the bill when the Senate concurred in the House amendments and the vote concurring in those amendments completed the passage of the bill. The provision of the Constitution to the effect that “no bill shall become a law unless on its final passage the vote be taken by yeas and nays” does not apply to a vote of the house which originated the bill when concurring in amendments of the other house. State v. Corbett, 61 Ark. 227; The Mechanics Building & Loan Association v. Coffman, 110 Ark. 269; Hull v. Miller, 4 Neb. 503; McCulloch v. State, 11 Ind. 424.

The case of Hull v. Miller, supra, was referred to with approval by this court in the Corbett case, and it is identical in this respect with the case now before us, and was decided under a similar provision in the State Constitution. The only difference in the cases is that in the Nebraska case the journal of the Senate (the bill having originated in the Senate) showed nothing further after the return of the bill from the House except that the amendments of the House to the bill were adopted showing by what majority or in what manner the vote was taken. The Supreme Court of Nebraska held that that was sufficient, and that the bill had been legally passed, notwithstanding the fact that the concurrence of the Senate in the House amendments had not been obtained by a yea and nay vote.

(2) It was proper and orderly for the amendments concurred in to be formally incorporated in the bill by engrossment under the supervision of the committee of the Senate and in accordance with the rules, but the additional vote thereafter was supererogatory, for the simple reason that the concurrence in the amendments completed the passage of the bill. A mistake made by the committee in the engrossment of the bill did not affect its validity and could be corrected at any time before the bill was finally signed by the presiding officer and approved by the Governor as enrolled.

The conclusion reached by the court is that the statute was duly enacted and that no constitutional requirement was omitted during its passage through the two Houses.

This case was submitted in October, 1915. We were advised that a similar statute enacted by the Legislature of the State of Oregon and upheld by the Supreme Court of that State, Stettler v. O’Hara, reported in 139 Pac. 743, Ann. Cas. 1916, A-217, was then under consideration on writ of error by the Supreme Court of the United States. We decided to await the decision of that court in that case. It has only been recently decided and the decision of the Supreme Court of Oregon was affirmed without a written opinion of the court because one member of the court was disqualified and the others were evenly divided on the question.

(3) The constitutionality of the statute is attacked on the ground that the act violates the Fourteenth amendment of the Constitution of the United States by interfering with the right of contract of both employer and employee. As early as 1876, the Supreme Court of the State of Massachusetts upheld the validity of a law prohibiting the employment of minors under the age of eighteen years and women in manufacturing establishments more than a certain number of hours per day or week. There, as here, the validity of the act was attacked on the ground that it interfered with the liberty of contract of both employer and employee. Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383. Since then statutes regulating and limiting the hours of labor of women and discriminating in their favor in that regard have been passed in twenty-seven States and have been generally sustained by the State courts of last resort and by the Supreme Court of the United States. Ritchie & Co. v. Wayman, 244 Ill. 509, 91 N. E. 695, 27 L. R. A. (N. S.) 994; People v. Elerding, 254 Ill. 579, 98 N. E. 982, 40 L. R. A. (N. S.) 893; Muller v. Oregon, 208 U. S. 412; Withey v. Bloem, 163 Mich. 419, 128 N. W. 913, and case note. In that case reference to the earlier case notes on the question are made. Ex parte Wong Wing (Cal.), 51 L. R. A. (N. S.) 361, and note; State v. Bunting, 71 Ore. 259, 139 Pac. 731, Ann. Cas. 1916 C-1003 and case note, in which earlier case notes are referred to. Among them is the case of Riley v. Commonwealth of Massachusetts, 232 U. S. 671, in which the Supreme Court of the United States affirmed a decision of the Supreme Court of the State of Massachusetts to the effect that a State statute limiting the hours of labor in factories for women, if otherwise valid, is not unconstitutional as depriving the employer and the employee of property without due process of law by limiting the right to buy and sell labor and infringing the liberty of contract in that respect.

In People v. Charles Schweinder Press, 214 N. Y. 395, 108 N. E. 639, Ann. Cas. 1916, D-1059, the New York Court of Appeals upheld a statute prohibiting women from working at night in factories and held that the statute was constitutional as a police regulation in the interest of public health and the general welfare of the people. The court said: “Protection of the health of women is a subject of special concern to the State. However confident a great number of people may be that in many spheres of activity, including that of the administration of government, woman is the full equal of man, no one doubts that as regards bodily strength and endurance she is inferior and that her health in the field of physical labor must be specially guarded by tbe State if it is to be preserved, and if sbe is to continue successfully and healthfully to discharge the duties which nature has imposed upon her. This proposition is fully recognized and stated in Muller v. Oregon, 208 U. S. 412, 421, 28 S. Ct. 324, 52 U. S. (L. ed.) 551, 13 Ann. Cas. 957, where it was said: “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 not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race. * * * Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protction may be sustained, even when like legislation is not necessary for men and could not be sustained.” In People v. Case, 153 Mich. 98, 116 N W. 558, 18 L. R. A. (N. S.) 657, it was held that a municipal ordinance prohibiting keepers of saloons where intoxicating liquors are sold from permitting women to be in or about their places of business and from selling intoxicants to them is not an unconstitutional discrimination against women, nor does it deprive them of their equal rights, privileges and immunities under the Constitution.

In the case note it was recognized that the p'ower to exclude women from saloons or employment therein is but one phase of the broader question of the constitutionality of discrimination against women in police regulations and it was said that the constitutionality of the statutes excluding women from employment in saloons or other places where intoxicating liquors are sold has been almost universally sustained. Judge Cooley says:

“Some employments * * * may be admissible for males and improper for females, and regulations recognizing <the impropriety and forbidding women engaging in them would be open to no reasonable objection.” Cooley on Constitutional Limitation (7 ed.), p. 889. (Note — See 50 Am. Rep. 636, for page and edition.)

Statutes similar to the one under consideration have been enacted in at least nine other States. It is true that it has been often held by the Supreme Court of the United States that the general right to contract is protected by the Fourteenth Amendment to the Constitution; yet is equally well settled that that this liberty is not absolute, but that a State may in the exercise of its police power prevent the individual from making certain kinds of contracts. In Williams v. State, 85 Ark. 464, this court, admitting that the police power of the State is incapable of precise definition after quoting from two decisions of the Supreme Court of the United States on the question, said : “ These cases are cited to show that the exercise of the police power is not limited to regulations to promote the public health, morals or safety, and that it may be so extended to such regulations as will promote the public convenience and general prosperity.” In Chicago v. Bowman Dairy Co., 234 Ill. 294, 14 A. & E. Ann. Cas. 700, 17 L. R. A. (N. S.) 684, it was said: “The police power is said to be an attribute of sovereignty, and to exist without any reservation in the Constitution, and to be founded upon the duty of the State to protect its citizens and to provide the safety and good order of society.”

In Otis v. Parker, 187 U. S. 606, Mr. Justice Holmes said: “While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a Constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English speaking communities, would become the partisan of a particular set of ethical or economical opinions which hy no means are held semper ubique et ab ommbus.”

It is a matter of common knowledge of which we take judicial notice that conditions have arisen with reference to the employment of women which has made it necessary for many of the States to appoint commissions to make a detailed investigation of the subject of women’s work and their wages. Many voluntary societies have made this question the subject of careful investigation. Medical societies and scientists have studied the subject and have collected carefully prepared data upon which they have prepared written opinions. It has been the concensus of opinion of all these societies, medical and other scientific experts that inadequate wages tend to impair the health of women in all cases and in some cases to injuriously affect their morals. Indeed, it is a matter of common knowledge that if women are paid inadequate wages so that they are not able to purchase sufficient food to properly nourish their bodies, this will as certainly impair their health as overwork. It is certain that if their wages are not sufficient to purchase proper nourishment for their bodies, the deficiency must be supplied hy some one else or by the public, if they are to keep their normal strength and health. The investigations above referred to show that it has become absolutely necessary for many women to work to sustain themselves and that they have no one to assist them. The strength, intelligence and virT tue of each generation depends to a great extent upon the mothers. Therefore, the health and morals of the women are a matter of grave concern to the public and consequently to the State itself.

The members of the Legislature come from every county in the State. The presumption is that it passed the statute to meet a condition which it found to exist and to remedy the evil caused thereby. On this question, Judge Cooley says:

“Whether a statute is constitutional or not is always a question of power; that is, a question whether the Legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished and the mode of enacting it has kept within the constitutional limits and observed the constitutional conditions. In any case, in which this question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. Cooley, Const. Lim. (7 ed.), p. 257.

As said in Stettler v. O’Hara, supra, we believe that every argument put forward to sustain the maximum hours law or the restriction of places where women work applies equally in favor of the minimum wage law as also being within the police power of the State and as a regulation tending to guard the public morals and the public health.

Of course, the Legislature could not fix an unreasonable or arbitrary minimum wage but it must be fair and reasonable. It has been said that as to what is fair and reasonable there is no standard more appropriate than “the"normal needs of the average employee, regarded as a human being living in a civilized community. ’ ’

It follows that the judgment must be reversed and the cause remanded for further proceedings according to law. '