McGrew v. Industrial Commission , 96 Utah 203 ( 1938 )

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 1-3 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 4 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 5 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 UtilitiesCommission, 59 Utah 191, 203 P. 627; Salt Lake City v. UtahLight Traction Company, 52 Utah 210, 173 P. 556, 3 A.L.R. 715;Union Portland Cement Co. v. Public Utilities Commission,56 Utah 175, 189 P. 593; United States Smelting, Refining Company v. Utah Power Light Company, 58 Utah 168, 197 P. 902; GermanAlliance Insurance Company v. Lewis, 233 U.S. 389,34 S. Ct. 612, 58 L. Ed. 1011, L.R.A. 1915C, 1189; National Union FireInsurance Co. v. Wanberg, 260 U.S. 71, 43 S. Ct. 32,67 L. Ed. 136. Laws prohibiting the sale of tobacco or alcoholic liquors to certain classes of persons, or at all, have been upheld as well as laws forbidding payment of sailors' wages in advance.Patterson v. Bark Eudora, 190 U.S. 169, 23 S. Ct. 821,47 L. Ed. 1002. Employers of miners may be required to pay for coal mined before screening, McLean v. Arkansas, 211 U.S. 539,29 S. Ct. 206, 53 L. Ed. 315; laws requiring store orders issued for wages to be redeemable in cash, Knoxville Iron Co. v.Harbison, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55; laws prohibiting the sale of certain produce or of produce from certain regions, and so on ad infinitum.

The right to regulate hours of labor in certain industries and as to women in industry has universally been upheld as well as the right to require payment of time and one half for overtime hours of work. Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324,52 L. Ed. 551, 13 Ann. Cas. 957; Riley v. Massachusetts,232 U.S. 671, 34 S. Ct. 469, 58 L. Ed. 788; Hawley v. Walker,232 U.S. 718, 34 S. Ct. 479, 58 L. Ed. 813; Miller v. Wilson,236 U.S. 373, 35 S. Ct. 342, 343, 59 L. Ed. 628, L.R.A. 1915F, 829;Bosley v. McLaughlin, 236 U.S. 385, 35 S. Ct. 345,59 L. Ed. 632; Bunting v. Oregon, 243 U.S. 426, 37 S. Ct. 435,61 L. Ed. 830, Ann. Cas. 1918A, 1043.

All such regulatory acts are upheld on the principle that they fall within the police power of the state. The existence of this power and its sources and purposes are much more easily perceived than are its boundaries or limits. Said Chief Justice Shaw inCommonwealth v. Alger, 7 Cush., Mass., 53, it is

"the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same."

Chief Justice Redfield, in Thorpe v. Rutland BurlingtonR.R. Co., 27 Vt. 140, 62 Am. Dec. 625, put it in this language:

"This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. * * * It must of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others."

This power is generally conceded to include everything essential to the public safety, health and morals, and it has been held without dissent that this power is virile enough to put in State control the rights and properties which depend for their existence and enforcement upon contracts, and to subject them to such general regulations as may be for the good government of the State and the protection of such rights of individuals as may be deemed important.

The attack on minimum wage laws has generally been that they deprive persons of property or liberty of contract. But as shown all rights of property and all rights of contract are subject to regulation to insure the safety, health and morals of the State and its inhabitants. Much has been said as to the justification of minimum wage laws in protecting the 6-8 health of women and minors. Our act also requires the Industrial Commission to take into consideration the elements of morals, and it is argued that there is no relationship between income and morals and that the better paid women are often as immoral as the under paid ones. The state on the other hand contends that economic conditions often influence, encourage, induce or compel women who cannot earn a decent living with their hands to earn it with their bodies. Both of these arguments are largely beside the question. The problem of public morals has but little to do with sexual proclivities. The latter are usually dealt with by the criminal laws as safety and health measures. The morality with which the State is here concerned is the morality of the body politic, the morality of the mass of its citizenry; the moral attitude of the inhabitants towards the government and the purposes and ideals for which the State was established and which it aims to secure. Can anyone gainsay that a virile, enthusiastic and patriotic citizenry is for the general welfare of the state? Can it be doubted that the production of such a condition is a proper undertaking for the state? And is not the primary purpose of our government to insure its citizens not only life and political liberty but the pursuit of happiness, for "man is that he might have joy"? Any condition which causes great numbers of our citizens to be, or to feel that they are being exploited for the benefit of others; any condition that causes great numbers of the people to feel that the state is not interested in protecting them, that causes them to doubt that the government is established for the benefit of all, is one that invites public attention and remedy. Too long working hours, or too small wages tend to undermine the spirits, hope and the courage of the persons affected. They breed discontent, despondency and disrespect for law, order and government. Lack of decent living, hunger and want of moderate relaxation and pleasure leads to pilfering, shoplifting and embezzling, sex immorality, and other crimes. At least it gives stimulus to such temptations and encourages such conduct by salving the conscience with the bromide, "I am earning more than I get." The constant denial of self so one is always hungry or must feel ashamed of one's inadequate, meagre or patched wardrobe when one is working day after day for others who seem to have plenty of both food and clothing, undermines the character, the ideals, the morale of people, until they lose the spirit of pride in their status, in their citizenship and in their country, which they may come to feel has displayed no interest in their welfare. The preservation of the state, the very existence of the government, the orderly procedure of the body politic, all require that the great body of the citizenry shall be happy, moderately contented and proud of their country and their citizenship. The better the morale the higher the moral attitude of the people towards the government, the more successfully can the government operate. Democracy can exist and maintain itself only as long as the people feel that it subserves its purpose of equality of opportunity and freedom from political, economic or intellectual slavery or involuntary servitude. It must protect alike the weak against the strong and the strong against the weak; it must protect the rich against the poor and the poor against the rich; and must see that labor and capital alike receive their just deserts; that when men are engaged in a common legitimate enterprise, that is, when several contribute to a beneficial result, that one by the advantage of position shall not exploit the others. To do less than this is not democracy. And no constitution establishing a government of the people, for the people and by the people can lend itself to a construction that denies such rights or such duties. The State Constitution in its preamble declares it is established "in order to secure and perpetuate the principles of free government," and Section 2 of Article 1 declares that a free government is founded on the authority of the people "for their equal protection and benefit." Any law that denies to one the equal protection and benefit it insures to another contravenes the spirit of the Constitution. Likewise it must follow that any law, positive in its nature, that is passed to insure to one citizen a protection, a benefit or an opportunity or choice more nearly equal to that which the law gives to another is within the letter and spirit of the Constitution. And so while the law gives to man the right to enter into contracts for legitimate purposes it also decrees that when such contracts are made, the parties should be on an equality, that is, that each should be equally free to contract and that one should not be acting under the compulsion or coercion of any person or thing whatsoever. And in a situation such as we have where men are under legal as well as moral responsibility to provide for their families, and women too are under legal responsibility to provide for their offspring; where workers are abundant and work scarce, where there are scores of persons seeking each job or place of employment, many so desperately in need that they are prone to take work at any price, the employers, relatively few in number, are placed in a position of great tactical and strategic advantage, and such few as may be unscrupulous, taking advantage of the dire necessities of the workers, may impose unconscionable terms of wages and hours on the workers. Can anyone question the right of State to require that Esau be fed before Jacob drives a bargain with him for the sale of his birthright? Courts have often held that where economic or social developments have created conditions under which the employer and employe were not on a parity in making contracts of employment, or where both were not relatively free in making or rejecting such contracts, the state may prescribe regulations in the form of maximum hours and minimum wages, that is, the law may seek to equalize in some measure the inequalities between the parties in contracting which economic or social conditions have created. Vernon v. Bethel, 2 Eden's Ch. Rep. 68; State v. Holden, 14 Utah 71, 46 P. 756, 37 L.R.A. 103; Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383,42 L. Ed. 780; Parrish v. West Coast Hotel Co., 185 Wash. 581,55 P.2d 1083; West Coast Hotel Co. v. Parrish, 300 U.S. 379,57 S. Ct. 578, 81 L. Ed. 703, 108 A.L.R. 1330; Larsen v. Rice,100 Wash. 642, 171 P. 1037. Liberty of contract does not mean the right to make any kind of contract with any body but merely the right to make contracts with competent persons on a plane of relative parity or freedom of choice, and within the limits allowed or not forbidden by law. We add two further thoughts. Within the realm of police power the legislature may act in any matter not forbidden by the Constitution expressly or by necessary implication. We find no restrictions in the Constitution on the right of the state to prescribe maximum hours, minimum wages or general conditions of labor in the state. Also Article 16 of the Constitution provides (Section 1) that "The rights of labor shall have just protection through laws calculated to promote the industrial welfare of the State." What laws are to be enacted calculated to promote the industrial welfare of the state is for the determination of the legislature, and in general its determination as to what laws are so calculated is final and conclusive. It may well decide that a minimum wage and maximum hour law for women and minors is calculated to promote the industrial welfare of the state. And whatever laws it may enact to promote the industrial welfare of the state must be so framed as to give the rights of labor just protection. As to the efficacy or wisdom of such laws we have nothing to do. That argument should be addressed to the legislature.

By supplemental briefs filed since the argument counsel has discussed the effect of House Joint Resolution Number 10 proposing an amendment to Article 16 of the Constitution of the State (section 8, see Laws 1933, p. 161), authorizing the legislature to provide for the establishment of a minimum wage for women and minors. This resolution was 9, 10 passed by the legislature March 9, 1933, the same day as the minimum wage law, Chapter 38, Laws of Utah 1933, was passed by the Legislature. The proposed amendment was submitted to the electors of the State on Tuesday, November 8, 1933, and ratified by a majority vote of the electors. The plaintiffs assail it as not properly ratified and adopted while the State relies upon it as retroactive to further uphold its cause. We need not pass upon the question because the amendment if validly adopted and ratified would not be retroactive. The minimum wage law, if valid, must have been within the legislative power to enact when it was adopted in March, 1933, that is under the Constitution without the amendment. We hold that under the Constitution the legislature in 1933 had the power to enact legislation to provide maximum hours, minimum wages and regulate general conditions of labor at least as to women and minors in any or all industry in the State. The record discloses that generally the employers affected by the Order in the instant case have manifested a fair spirit in a desire to cooperate with their employees, but as is the case with all prohibitory or regulatory laws they affect the many to protect the public from the acts of the few.

This brings us to a consideration of point (b) — that Mandatory Order Number One is void even though the legislature has constitutional authority to enact laws prescribing minimum wages and maximum hours in industry. Plaintiffs charge that Mandatory Order Number One is void because: 1. Chapter 38 constitutes a delegation of legislative authority to the Industrial Commission; 2. Under it the Commission invades industrial fields entirely unrelated to wages and hours; 3. The Wage Board was not properly appointed; 4. No distinctions are recognized between minors and adults or between women and boys under eighteen years of age; 5. The procedure followed by the Commission does not constitute "due process of law"; 6. No public hearing, as required by the Act, was held by the Commission; 7. There was no competent evidence upon which to base the Order and no findings of fact were made by the Commission. We shall dispose of each of these objections in order.

1. The Act provides in Sections 4 and 5:

"If, after investigation, the commission is of the opinion, that, in any occupation, trade, or industry, the wages paid to women and minors are inadequate to supply the cost of proper living, or the hours or conditions of labor are prejudicial to the health, morals or welfare of the workers, the commission shall call a conference," etc.

Section 4. An inquiry shall be had and if conditions warrant a public hearing shall be held to determine if there is any need for the making of an order by the Commission fixing minimum wages or maximum hours of labor. It is urged that thereby the legislature delegated to the Industrial Commission the right to determine whether or not a minimum wage law should be in effect in Utah and the terms thereof. The position is not tenable. The legislature definitely enacted and established a minimum wage law for women and minors under 18 years of age in industry. The Act contemplates that females and boys under eighteen years of age, employed in industry, shall receive not less than the minimum wage and shall work not more than the maximum number of hours provided by the Act. Any one paying less than the minimum wage provided or working employees more than the maximum hours shall be guilty of a misdemeanor. True, no amount is given in figures as the minimum wage nor a prescribed number of hours as the maximum. The Act provides that the minimum wage which can be paid is "a wage adequate to supply to such women and minors the necessary cost of proper living and to maintain the health and welfare" (Section 5), and maximum hours as not exceeding the number of hours consistent with their health and welfare. Such wages or hours may vary with the different industries or with different localities. And as long as the employer does not transgress these rules he may make any contract of employment he can with his employees. True the definitions or terms are general but so are laws requiring employers to provide employees with places reasonably safe to work; laws requiring speed on the highways to be reasonable and safe considering the conditions of traffic; rules with respect to the exercise of reasonable care; that buildings must be properly or sufficiently lighted; and that foodstuffs must be suitable for human consumption. All these have been upheld by the court time and again. As long as the employer pays such a wage and does not exceed the requirements as to hours he goes along unhampered by the Commission. As long as he observes the law he is unaffected by any action or orders of the Commission. But when the Commission, which is charged with the duty of keeping itself informed as to wages paid, hours and conditions of labor in industry, shall be of the opinion that the employers of women and minors in any industry shall be paying inadequate wages or maintaining unduly long hours, it shall institute an investigation under Section 4 of the Act. That such investigation shall be thorough, complete and fair, and receive more time than the commissioners with their multiple other duties could give, the Commission appoints an investigating committee known as a wage board, which shall investigate the matter of wages, hours, and conditions of labor in the particular industry; also the costs of living for such employees, the number of hours they can safely and healthfully work in that industry and the conditions which should surround such workers at the place of work to reasonably protect their health and general welfare. That this committee called the Wage Board may function properly and efficiently and have some familiarity with the problems with which it deals it is provided that it must consist of a number of employees in the industry under investigation and an equal number of employers in the same industry, with a member of the Commission as chairman. This board is merely an investigating agent for the Commission to ascertain the facts and make a preliminary determination as to whether or not the spirit of the law is being violated. The Wage Board does not fix minimum wages, maximum hours or conditions of labor. It investigates, finds facts and makes recommendations to the Commission much as a referee does to a court. The board shall keep a record of its proceedings, its deliberations, and all evidence, documentary or parole, it receives, for the use of the Commission. If the board finds that the wages paid in the industry are not below the minimum, that is, are adequate, the hours of labor are not too long and labor conditions are satisfactory, it may so report to the Commission and presumably nothing further will be done. But if the board finds that wages are too low, hours too long, or labor conditions harmful, it makes findings of what these things should be and files the same together with the record of its proceedings, deliberations and evidence with the Commission. (Section 4.)

Should the Commission after examination of the report decide that the same warrants any action it shall upon its own motion, or upon petition, fix a time for public hearings on the matter, notice of which shall be given as provided in subsection (b) of Section 5 of the Act. This hearing is not a mass meeting at which people may appear to discuss the virtues of minimum wages laws, or the reasons for their enactment, or the public sentiment with relation thereto. It is a quasi-judicial hearing conducted by the Commission and confined to an investigation into the questions: (a) Are the wages being paid in the particular industry adequate to supply the costs of proper living? (b) If not, what is a proper wage? (c) Are the hours or conditions of labor in the industry such as to be prejudicial to the health, morals, or welfare of the workers? (d) If so, what is the proper remedy or correction to be applied? Fred O. Morgan v. United States ofAmerica and Secretary of Agriculture, Stockyards Case,304 U.S. 1, 58 S. Ct. 773, 82 L. Ed. 1129.

The Commission may have before it at this hearing as evidence the report and findings of the wage board and anyone interested in the question, as an employer or employee in the industry, may appear and testify, or produce other competent witnesses to testify as to the matters involved. It appears from Sections 3 and 12 of the Act that such witnesses should be sworn and testify under oath. A record of their testimony must be made and preserved by the Commission. This is necessary since reviews by the court provided in Section 12 must be made upon the evidence and testimony as taken before the Commission.

After such hearing the Commission must determine if the wages paid in the industry are below the minimum prescribed by the law; whether the hours of labor in the industry are longer than prescribed by law; and whether the standard conditions of labor are such as to be prejudicial to the health, morals or welfare of the workers. If the Commission determines that as to either of these the law is being violated it may then determine in proper findings, based upon the evidence before it, what the minimum wage in the industry should be in dollars and cents, based upon the yardstick fixed in the Act, that it be such sum as is adequate to supply the cost of proper living; what the maximum hours of work in the industry should be measured by the yardstick, that they must not be so long as to be prejudicial to the health, morale or moral attitude and welfare of the workers. It may also determine in its findings from the evidence the standard conditions of labor which should exist in the industry, trade, or occupation to safeguard the health and welfare of such employees. If the facts so found warrant, the Commission makes a mandatory order specifying the minimum wage in dollars, the maximum hours, and the standard condition of labor to govern the industry, trade or occupation. This relieves each employer in the industry from himself determining these things and taking the chance that his judgment is wrong. He is in a position like a driver on the highway, where the law says the speed must be reasonable and safe. If he relies upon his own judgment as to what is reasonable and safe and his judgment is in error, he may be held to answer.

What we have said above disposes of objections 1, 2, 3, and 4 as made to Mandatory Order Number One, adversely to plaintiffs. Objections 5 and 6 will be considered together as they both strike at the same matter, as to whether plaintiffs have had an opportunity for a hearing as required by 11-14 the "due process clause" of the Constitution. "Due process" was defined by Mr. Justice Field, in Hagar v.Reclamation District, 111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569. He said [page 667]:

"It is sufficient to observe here that by ``due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights."

After quoting the above statement, in Argyle v. Johnson,39 Utah 500, 118 P. 487, this court said [page 490]:

"In giving legal effect to the foregoing principle in cases like the one at bar, it is not necessary that a hearing be had at any particular stage of the proceeding by which rights may be affected, or that the hearing be had before a regularly constituted court of justice; but it is necessary that a hearing be given at some time, and that the same be had before some officer, tribunal, board, or court to whom the person whose property is affected may present his evidence, objections, and arguments, to the end that the officer, tribunal, board, or court may be enabled to fairly and intelligently pass upon and determine the questions presented for decision."

Were the plaintiffs accorded a hearing that constitutes "due process" before the issuance of Mandatory Order Number One? Even a casual inspection of the record reveals that no such hearing was had; that there was no public hearing as required by law, and the Commission therefore acted in excess of its jurisdiction. The record reveals that a public meeting was held at the capitol pursuant to notice, and the opponents and proponents were allotted three hours each to talk about the matters. No witnesses were sworn; no record made of their statements; and as far as the proponents were concerned none of them appeared to be either employers or employees, or in any way connected with the retail trades or familiar with the questions under discussion. It appears to have been a public meeting and not a public hearing; a case of "we should" or "we should not" instead of a presentation of facts on the questions up for hearing. It appears to have been primarily a meeting which might reflect public sentiment rather than a hearing where testimony under oath is taken and preserved in the record as mandatorily required by the act.

What is the essential quality of the proceeding under review and what is the nature of the hearing prescribed by the statute? The proceeding is one before an administrative board, not in the ordinary administration of purely executive duties, but a proceeding of a regulatory or quasi judicial trend or nature. The order which resulted is in its nature 15-17 factual and declaratory. It is in some aspects much similar to a rate making order. The Commission as the administrative agent of the state in fixing the wages or hours in definite terms must make them under the terms and in harmony with the conditions and standards prescribed by the legislature. The legislature has required the Commission to determine that wagesbeing paid in the industry are inadequate to proper living; orthat hours of employment are so long as to be dangerous to healthor general welfare of the workers; or that the standardconditions of labor are against the general welfare or health ofthe employees. If it so finds then it may determine and prescribe a minimum wage, maximum hours; and general standards or conditions under which employees shall labor. Such duty, such power, is vastly different from the ordinary administrative or executive function or duty. Being such, it carries with it fundamental requirements of procedure. There must be a full and public hearing. There must be evidence sufficient to support the necessary findings of fact. And nothing can be treated as evidence which is not such. United States v. Abilene Southern Railway, 265 U.S. 274, 44 S. Ct. 565, 68 L. Ed. 1016;Garfield Smelting Company v. Industrial Commission, 53 Utah 133,178 P. 57; Rockefeller v. Industrial Commission, 58 Utah 124,197 P. 1038. Facts and circumstances which ought to be considered should not be excluded nor should matters or circumstances which should not be legally pertinent be considered. The Commission is not bound by technical rules of evidence but that does not mean that they may dispense with evidence, or act upon matters which are not evidence. As an aside, we remark that the record contains perhaps 200 letters to the Commission from divers parties urging or opposing the action taken. While the Commission filed them and certified them to us along with the record, most of them are in no sense evidence and we conclude that the Commission did not consider them and was not influenced thereby. Findings must be made by the Commission and must embrace the facts which are needed to sustain the order.United States v. Abilene Southern Railway, supra; Florida v. United States, 282 U.S. 194, 51 S. Ct. 119, 75 L. Ed. 291;U.S. v. B. O. Ry. Co., 293 U.S. 454, 55 S. Ct. 268,79 L. Ed. 587; Chicago Junction Case, 264 U.S. 258, 44 S. Ct. 317,68 L. Ed. 667; Geo. A. Lowe Co. v. Industrial Commission, 56 Utah 519,190 P. 934; Moray v. Industrial Commission, 58 Utah 404,199 P. 1023.

Such proceeding has been well described by Chief Justice Hughes in Morgan v. United States, 298 U.S. 468,56 S. Ct. 906, 80 L. Ed. 1288, in which he says [page 911]:

"A proceeding of this sort requiring the taking and weighing of evidence, determinations of fact based upon the consideration of the evidence, and the making of an order supported by such findings, has a quality resembling that of a judicial proceeding. Hence it is frequently described as a proceeding of a quasi judicial character. The requirement of a ``full hearing' has obvious reference to the tradition of judicial proceedings in which evidence is received and weighed by the trier of the facts. The ``hearing' is designed to afford the safeguard that the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action. The ``hearing' is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given."

The record further discloses that no findings of fact were made by the Commission upon which to base any order. The Commission seems to have proceeded on the theory that the wage board fixed the wages, the hours, and conditions of labor, and the Commission merely determined at a public meeting whether or not public sentiment supported the action of the wage board.

The legislature in requiring a full and public hearing had regard to judicial standards — not in a technical sense but in regards to fundamental requirements of fairness, — that one shall hear before one condemns, and that judgments shall be based on evidence — which are the essence of due process in a proceeding of a judicial nature. Maintaining of proper 18 standards by administrative agencies charged with quasi-judicial or quasi-legislative functions is of the highest importance and in the interest of the agency itself. Thus only can it maintain the confidence and respect essential to a proper performance of its duties. For these agencies, which necessarily multiply in our complex society, — to serve the purposes for which they are created and endowed with such vast power, they must accredit themselves by acting in harmony with the inbred concepts of fair play and the cherished traditions of a cautious, deliberate and judicious determination of the questions affecting people's rights or liberties.

No public hearing as provided by law having been had and no testimony having been taken or preserved at the public meeting, and no findings of fact having been made by the Commission upon which to base or predicate the order, it follows that the Commission exceeded its authority in issuing Mandatory Order Number One and the same is therefore void.

The brief attacks also that part of Mandatory Order Number One which provides:

(12) "Every employee who is discharged without one week's written advance notice shall be paid one week's salary at the time of dismissal, provided that this rule does not apply in the case of an employee who has been dismissed by reason of dishonesty or misconduct."

as beyond the power of the Commission because it prevents an employer from discharging an utterly incompetent employee or one in a case where there is strong evidence of dishonesty, without the employer being penalized one week's pay. While there may be grave doubts as to the Commission's authority to make a rule as quoted, we do not deem the question within the issues presented by the record here and so do not pass on the point.

The cause is remanded to the Industrial Commission for further proceedings in conformity with the views herein expressed.

FOLLAND, C.J., and HANSON and MOFFAT, JJ., concur.