IVY PETERSON, Respondent, v. JERRY HAGAN, as Director of the Department of Labor and Industries, et al., Appellants. KAUFFMAN BUICK COMPANY, INC., Respondent, v. JERRY HAGAN, as Director of the Department of Labor and Industries, et al., Appellants. TOP-HAT CAFE, INC., Respondent, v. JERRY HAGAN, as Director of the Department of Labor and Industries, et al., Appellants. DAVID L. REIFF et al., Respondents, v. JERRY HAGAN, as Director of the Department of Labor and Industries, et al., Appellants.
Nos. 35289, 35290, 35291, 35292
Supreme Court of Washington, En Banc
April 14, 1960
September 13, 1960
351 P. (2d) 127
The judgment is affirmed.
September 13, 1960. Petition for rehearing denied.
McMicken, Rupp & Schweppe, for respondents.
William J. Millard, Jr., amicus curiae.
FOSTER, J. — This appeal consolidates four separate actions brought under the declaratory judgment statute (Laws of 1935, chapter 113, p. 305;
The complaint in each case is substantially the same except that the respondents Reiff operate an employment agency; the respondent Kauffman Buick Company sells automobiles at retail; the respondent Peterson, doing business as Bellevue Sanatorium, operates a rest home for elderly persons and invalids; and respondent Top-Hat Cafe, Incorporated, operates a restaurant in Spokane. Each respondent alleged that no interstate commerce was involved and that, consequently, the Federal Fair Labor Standards Act (
The demurrer of the appellants to each complaint was overruled, and the judgment in each case recites that the
The trial court held that § 3 and § 5 of Laws of 1959, chapter 294, were unconstitutional, but that, because of the severability declaration of § 13, the remainder of the act was not affected. Our examination is likewise so limited.
While the appellants make five separate assignments of error,3 the attorney general declares that such assignments involve only two questions, that is, the constitutionality of § 3 and the constitutionality of § 5. No other or additional question is raised or argued.
Each of the complaints alleged that the whole act contravened the due process clauses of the
Here the respondents again urge propositions rejected by the superior court, and the right to do so is conceded by appellants. Specifically, it is claimed that § 3 is void because it is contrary to the equal protection provisions of the state and federal constitutions.
Because the respondents did not cross-appeal, appellants object to the respondents’ additional arguments against the validity of the two sections, namely, that the proviso at the end of § 12 exempting persons subject to the federal fair labor standards act results in an unconstitutional discrimination in favor of employers in interstate commerce, which renders § 3 void, and that the exemptions contained in § 1(5) excluding a number of employments from the operation of § 3 constitute a further unconstitutional discrimination against them which renders § 3 void.
We think these objections without force because the respondents are not seeking any additional relief, but are only advancing additional arguments in support of the judgment.
A successful litigant need not cross-appeal in order to urge any additional reasons in support of the judgment, even though rejected by the trial court, but no additional relief will be granted on appeal in the absence of a cross-appeal. Burt v. Heikkala, 44 Wn. (2d) 52, 265 P. (2d) 280; McUne v. Fuqua, 42 Wn. (2d) 65, 253 P. (2d) 632; State ex rel. P. U. D. No. 1 v. Schwab, 40 Wn. (2d) 814, 246 P. (2d) 1081; Latimer v. Western Machinery Exchange, 40 Wn. (2d) 155, 241 P. (2d) 923; Wilkins Ditch Co. v. Drake, 115 Wash. 603, 197 Pac. 769. The same rule prevails in the United States supreme court. Helvering v. Lerner Stores Corp., 314 U. S. 463, 86 L. Ed. 343, 62 S. Ct. 341.
The attorney general argues that the equal protection clause and the due process clause of the
In considering such statements made in the course of judicial reasoning, one must remember that general expressions in every opinion are to be confined to the facts then before the court and are to be limited in their relation to the case then decided and to the points actually involved. Cohens v. Virginia, 19 U. S. 264, 5 L. Ed. 257; State ex rel. Lemon v. Langlie, 45 Wn. (2d) 82, 273 P. (2d) 464; In re Levas’ Estate, 33 Wn. (2d) 530, 206 P. (2d) 482; Gilmour v. Longmire, 10 Wn. (2d) 511, 117 P. (2d) 187; State ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162; Ingham v. Harper & Son, 71 Wash. 286, 128 Pac. 675.
We reject flatly the argument that the due process and equal protection clauses of the federal and state constitutions do not apply to statutes enacted in the exercise of the police power. Otherwise, the result would be a police state, and the legislative branch of the government would be omnipotent.
The United States supreme court specifically decided that police regulations were subject to the equal protection clause of the
“. . . But we cannot at all agree that a police regulation is not, like any other law, subject to the ‘equal protection’ clause of the Fourteenth Amendment. Nothing to that effect was held or intimated in any of the cases referred to. The constitutional guaranty entitles all persons and corporations within the jurisdiction of the State to the protection of equal laws, in this as in other departments of legislation. It does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall
rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation. . . .”
In 1957, the Supreme Court of West Virginia in State v. Memorial Gardens Development Corp., 143 W. Va. 182, 189, 101 S. E. (2d) 425, 429, held:
“All legislation under the police power must be within the constitutional inhibitions. Milkint v. McNeeley, 113 W. Va. 804, 169 S. E. 790; Eubank v. City of Richmond, 226 U. S. 137 [33 S. Ct. 76, 57 L. Ed. 156]. . . .”
We said the same thing in Mitchell v. Consolidated School Dist., 17 Wn. (2d) 61, 135 P. (2d) 79, 146 A. L. R. 612, as follows:
“. . . the police power — broad and comprehensive as it is — may not be exercised in contravention of plain and unambiguous constitutional inhibitions. (2 Cooley‘s Constitutional Limitations (8th ed.), p. 1229; Jacobson v. Massachusetts, 197 U. S. 11, 25, 49 L. Ed. 643, 25 S. Ct. 358; State ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 5 L. R. A. (N.S.) 674; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. (N.S.) 338.)”
See, also, Ralph v. Wenatchee, 34 Wn. (2d) 638, 209 P. (2d) 270.
There is no relationship between the minimum wage act for women and children (Laws of 1913, chapter 174, p. 602 (
We start our examination of the proposition of whether § 3 of the act is a valid exercise of the police power on the hypothesis that the legislature may validly regulate
Because Seattle v. Smyth, supra, decided that a Seattle ordinance which prohibited any contractor upon public works to permit his employees to work more than eight hours in one calendar day was unconstitutional, respondents argue that a general statute regulating the terms of employment for all persons is unconstitutional. While respondents correctly state that this decision has never been expressly overruled, nevertheless, the opposite conclusion was reached by the court en banc in Malette v. Spokane, 77 Wash. 205, 137 Pac. 496, although a department of the court had previously decided otherwise (Malette v. Spokane, 68 Wash. 578, 123 Pac. 1005). Upon the authority of Malette, a Seattle ordinance fixing the wage rate of labor upon public works done by contract was sustained in Jahn v. Seattle, 120 Wash. 403, 207 Pac. 667. Indeed, the United States supreme court said in Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536, 93 L. Ed. 212, 69 S. Ct. 251, 6 A. L. R. (2d) 473:
“. . . That wages and hours can be fixed by law is no longer doubted since West Coast Hotel Co. v. Parrish, 300 U. S. 379; United States v. Darby, 312 U. S. 100, 125; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 187.”
It remains only to say that Seattle v. Smyth, supra, is now overruled.
It is helpful to an understanding of the problem to compare the present act with the earlier statute.
Laws of 1913, chapter 174, § 2, p. 602, contains a plain declaration of the legislative purpose that it is unlawful to employ women or minors under conditions detrimental to health or morals, or to employ women at wages not adequate for their maintenance. The legislature did not undertake to say what wages were inadequate to meet the declared legislative purpose but delegated such function to an administrative agency. In order to guarantee both constitutional and procedural due process, the administrative agency was authorized, by § 10, to make investigation in any “occupation, trade or industry” for the purpose of ascertaining
By §§ 10 and 11, upon findings made upon evidence taken before a conference selected by a statutory formula, the administrative agency was authorized to determine adequacy of wages. Upon such findings, the commission was authorized, by § 11, to make an order as to the conditions of the employment and to fix the minimum wages to be paid in a particular industry.
That statute was not repealed by the 1959 act. It is therefore, clear that the minimum wage act of 1913 for women and children continues in full force and effect. No orders of that administrative agency are here for review.
The 1959 act is entirely different from the earlier one, and, we are told, follows the pattern of the federal fair labor standards act,
For purposes of comparison, the 1959 statute does not contain any declaration of legislative purpose as did the 1913 minimum wage act for women and children. Laws of 1959, chapter 294, § 1(5), p. 1411, defines “Employee” but excludes agricultural labor and labor employed incidental to agriculture, domestic services, and executive, administrative, or professional services, and outside salesmen, without defining any such terms, leaving it to the director of the department of labor and industries to define such terms without let or hindrance. Several other exceptions are contained in the section.
The statute does not limit employment to eight hours a day or forty hours in a week, but permits unlimited and continuous employment beyond an eight-hour period providing the employee is paid time and one-half after eight hours in any one day, or forty hours in any one week. In view of the conclusions herein reached, a decision on this point is unnecessary.5
But the proviso of § 12 of the Laws of 1959, chapter 294, p. 1423, exempts employers covered by the federal act from the operation of § 3 of chapter 294 by declaring that any employer who has complied with the federal fair labor standards act shall be deemed to have complied with the state law. That proviso is:
“. . . Provided, That as to any employer and employment which is subject to the federal fair labor standards act, compliance with such act shall be deemed likewise to constitute compliance with section 1(5) (c), section 3, section 5 and section 7 of this act.”
“Except as otherwise provided in this section, no employer shall employ any of his employees for a workday longer than eight hours or for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. Every employee is entitled to have his overtime computed on both a daily and weekly basis each week and shall be paid either his daily or weekly overtime whichever is greater.”
Thus it is that Washington employers not within the terms of the federal fair labor standards act must pay to their employees overtime compensation after eight hours work in any one day, notwithstanding the fact that not more than forty hours have been worked in any one week. On the other hand, Washington employers who, from the accident of interstate commerce, are covered by the federal fair labor standards act are immune from any such restriction, and may employ persons for more than eight hours in any one day without payment of overtime provided the employment does not exceed forty hours in any one week.
Congress expressly granted the states the right to impose this restriction upon employers covered by the Federal Fair Labor Standards Act. But the legislature did not do so. Instead, it immunized employers covered by the federal act from state regulation and thus denied to small employers the equal protection of the laws.
Except for the accident of interstate commerce, employers engaged in identical businesses are not equally dealt with. One must pay its employees overtime for more than eight hours work in any one day, while the other is not so required to do. This is not classification or even an attempt at classification.7 It is discrimination — no more, no less — and prohibited by the equal protection clause in
In Washington Nat. Ins. Co. v. Board of Review of the N. J. Unemployment Compensation Comm., 1 N. J. 545, 64 A. (2d) 443, it was held that a section of the New Jersey unemployment compensation act was invalid because it created an arbitrary and discriminating classification. There was no valid reason to treat industrial life insurance agents differently from other industrial insurance agents. The New Jersey court held that the equal protection clause of the
“The equal protection clause means that the right of all persons must rest upon the same rule under similar circumstances, and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation. Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32, 48 S. Ct. 423, 72 L. Ed. 770 (1928). While the due process and equal protection guarantees are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class. The equal protection of the laws means that no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons under similar conditions and circumstances, in their lives, liberty, and property, and in the pursuit of happiness, both as respects privileges conferred and burdens imposed. Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U. S. 459, 57 S. Ct. 838, 81 L. Ed. 1223 (1937); Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, 299 U. S. 183, 57 S. Ct. 139, 81 L. Ed. 109 (1936); Concordia Fire Insurance Co. v. Illinois, 292 U. S. 535, 54 S. Ct. 830, 78 L. Ed. 1411 (1934); Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167 (1932); Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U. S. 544, 43 S. Ct. 636, 67 L. Ed. 1112 (1923); Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed. 254 (1921); Smith v. Texas, 233 U. S. 630, 34 S. Ct. 681, 58 L. Ed. 1129 (1914); Atchison, Topeka & Santa Fe R. Co. v. Matthews, 174 U. S. 96, 19 S. Ct. 609, 43 L. Ed. 909 (1899). This includes equality of exemption from liabilities. Cotting v. Kansas City Stock Yards Company, Etc., 183 U. S. 79, 22 S. Ct. 30, 46 L. Ed. 92 (1901).”
“Passing then to the question of classification, we reach really the crucial point of the case. We have endeavored to give this subject the most careful thought and investigation, but have been unable to convince ourselves that the attempted classification in this law answers the requirements of legal and constitutional classification, i.e., equal protection of the law. It is an old expression that classification, in order to be legal, must be rational; it must be founded upon real differences of situation or condition, which bear a just and proper relation to the attempted classification, and reasonably justify a different rule. State v. Henry, 37 N. M. 536, 25 P. 2d 204, 90 A. L. R. 805; 12 Am. Jur., Constitutional Law, Sections 476 and 481.
“It is well settled that there may justly be classification between employer and employee; each may be made a class, and a different rule applied, because there are differences of situation and in the considerations applicable to the various classes. But while classification is proper, there must always be uniformity within the class. If persons under the same circumstances and conditions are treated differently, there is arbitrary discrimination, and not classification. State v. Henry, supra. It is claimed that such is the effect of the present law, and we can see no escape from the conclusion.
“Under the provisions of section 3(a) (1) of the act the plaintiff is required to pay his employees the minimum wage of 75¢ per hour. On the other hand his competitors’ employees, because they work in drug stores, whether they serve food and drink for consumption on the premises or not, are declared to be ‘service employees’ and need only be paid 50¢ per hour. Thus, appellee‘s competitors obtain a competitive advantage because they are entitled to pay a lower minimum wage to its employees performing the same functions as in direct competition with appellee‘s employees.
“We are of opinion that the Act under consideration constitutes class legislation of the most objectionable kind insofar as it refers to drug store employees. The classification is arbitrary and oppressive and without any valid reason for its basis.”
Not without significance is the 1957 decision of the United States supreme court in Morey v. Doud, 354 U. S. 457, 1 L. Ed. (2d) 1485, 77 S. Ct. 1344, holding the provision of the Illinois community currency exchange act which exempted money orders issued by the American Express Company from regulation to be in violation of the equal protection clause. The United States supreme court said:
“Of course, distinctions in the treatment of business entities engaged in the same business activity may be justified by genuinely different characteristics of the business involved. This is so even where the discrimination is by name. But distinctions cannot be so justified if the ‘discrimination has no reasonable relation to these differences.’
“The principles controlling in the Smith and Hartford Co. cases, supra [Smith v. Cahoon, 283 U. S. 553, 75 L. Ed. 1264 51 S. Ct. 582; Hartford Co. v. Harrison, 301 U. S. 459, 81 L. Ed. 1223, 57 S. Ct. 838], are applicable here. The provisions in the Illinois Act, such as those requiring an annual inspection of licensed community currency exchanges by the State Auditor, make it clear that the statute was intended to afford the public continuing protection. The discrimination in favor of the American Express Company does not conform to this purpose. The exception of its money orders apparently rests on the legislative hypothesis that the characteristics of the American Express Company make it unnecessary to regulate their sales. Yet these sales, by virtue of the exception, will continue to be unregulated whether or not the American Express Company retains its present characteristics. On the other hand, sellers of competing money orders are subject to the Act even though their characteristics are, or become, substantially identical with those the American Express Company now has. . . .”
Laws of 1959, chapter 294, § 5, p. 1418, is as follows:
“For any occupation, the director shall make and revise such administrative regulations, including definitions of terms, as he may deem appropriate to carry out the purposes of this act or necessary to prevent the circumvention or evasion thereof and to safeguard the minimum wage rates
thereby established. Such regulations may include, but are not limited to, regulations defining and governing learners and apprentices, their number, proportion, and length of service; part-time pay; bonuses; overtime pay; special pay for special or extra work; and permitted charges to employees or allowances for board, lodging, apparel, or other facilities or services customarily furnished by employers to employees.”
The respondents alleged in their complaints that this section was void because it violated the seventh amendment to the state constitution by attempting to delegate legislative power to the appellant director of the department of labor and industries. We agree. The act is devoid of any declared legislative purpose. No standards for the promulgation of rules are to be found anywhere in the statute. The vice of the challenged section is that it fails to distinguish between intrinsic legislative power and administrative rule-making power to execute a declared legislative purpose. Administrative rule-making power must be circumscribed by definite standards. Here there is an undisguised attempt at delegation of pure legislative power. The constitution forbids.
We recently had occasion to consider the constitutional power of the legislature to delegate rule-making power to an administrative agency. What we said in State v. Gilroy, 37 Wn. (2d) 41, 44, 221 P. (2d) 549, controls here. The statement is:
“The Washington constitution,
Art. II, § 1 ,8 vests the legislative power in the Senate and House of Representatives. What Chief Justice Hughes said in Panama Refining Co. v. Ryan, 293 U. S. 388, 421, 79 L. Ed. 446, 55 S. Ct. 241, concerning the national legislature, is equally applicable to the state legislature. We quote:“‘The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as deny-
ing to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.’
“Mr. Justice Cardozo, who dissented, conceded that ‘. . . to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed.’
“In the Panama Refining Co. case, supra, and in Schechter Poultry Corp. v. United States, 295 U. S. 495, 79 L. Ed. 1570, 55 S. Ct. 837, 97 A. L. R. 947, are found a detailed discussion and an explanation of the distinction between valid and invalid regulatory legislation. The principle is therein laid down that a law is invalid when the authority delegated leaves the regulatory or enforcement agency with unguided and unrestricted discretion in the assigned field. Stated affirmatively, the method of regulation by delegation of authority is subject to the limitation that the law providing for the delegation must also prescribe an accompanying rule of action or lay down a guide or standard whereby the exercise of discretion may be measured. State ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636, 643, 82 P. (2d) 120; Ferretti v. Jackson, 88 N. H. 296, 188 Atl. 474, 478.”
See, also, State v. Northwestern Electric Co., 183 Wash. 184, 49 P. (2d) 8, 101 A. L. R. 189.
Recently the supreme court of Oregon reached the same conclusion, and said in Demers v. Peterson, 197 Ore. 466, 254 P. (2d) 213:
“From a reading of the sections of the law hereinbefore quoted, the department, as well as the State Board of Aeronautics, has the unlimited power to make regulations to carry out the provisions of the act so long as they do not conflict
with the laws of the state or the federal government. Beyond this, the sky is the limit. There is no suggestion in the title of the act or in the act itself of the nature, extent or character of the regulations. It would appear that the department has carte blanche authority, beyond the limitation above mentioned, to formulate any regulations which it sees fit. Under a blanket authority the rule-making bodies or their directors could conjure up from their fancies or imaginations any regulation which might come to mind. For a violation thereof, the licensee could be fined, imprisoned and have his license revoked. “We hold that the above sections of the act relating to the rule-making power are unconstitutional in that the act contains no rule or standard fixed for the guidance of the administrative bodies in that respect.”
The principle is so firmly embedded in American constitutional law that we refrain from collecting the myriad of cases in other states.
The attorney general argues that, because Laws of 1959, chapter 294, § 8, p. 1420,9 provides for a judicial review of any administrative order, a different rule should apply.
The fallacy of this argument is that there is no standard by which a court can measure any rule of the director. It is an unbridled discretion in violation of the seventh amendment to the state constitution.
The attorney general argues that, as far as Laws of 1959, chapter 294, § 5, p. 1418, is concerned, any challenge to its constitutionality is presently premature because the director has not yet made any orders. This does not avail because the constitutionality of a statute must be determined by what can be done under it rather than by what has been done. The constitution guards against the chances of infringement. The supreme court of Virginia recently said:
“We have said more than once that the test of the constitutional validity of a law is not what has been done under it, but what may by its authority be done. Violett v. Alexandria, 92 Va. 561, 574, 23 S. E. 909, 913, 53 Am. St. Rep. 825, 31 L. R. A. 382; Southern Ry. Co. v. Commonwealth, 107 Va. 771, 777, 60 S. E. 70, 72, 17 L. R. A. (N.S.) 364; Richmond v. Carneal, 129 Va. 388, 106 S. E. 403, 14 A. L. R. 1341.” Edwards v. Commonwealth of Virginia, 191 Va. 272, 60 S. E. (2d) 916.
Accord: Demers v. Peterson, supra; Bowie v. Town of West Jefferson, 231 N. C. 408, 57 S. E. (2d) 369; Herr v. Rudolf, 75 N. D. 91, 25 N. W. (2d) 916, 169 A. L. R. 1388; United Community Services v. Omaha Nat. Bank, 162 Neb. 786, 77 N. W. (2d) 576; Appeal of Sleeper, 147 Me. 302, 87 A. (2d) 115; Babb v. Bullitt, 310 Ky. 211, 220 S. W. (2d) 394; Peter Kiewit Sons’ Co. v. County of Douglas, 161 Neb. 93, 72 N. W. (2d) 415; Wilson v. Okla. Tire & Supply Co., 211 Ark. 77, 199 S. W. (2d) 328; City of Los Angeles v. Lewis, 175 Cal. 777, 167 Pac. 390; State v. Evans, 73 Idaho 50, 245 P. (2d) 788; General Outdoor Advertising Co. v. Goodman, 128 Colo. 344, 262 P. (2d) 261.
Moreover, § 5 is void on its face so that the least exercise of the power which the legislature attempted to delegate would be void. Ajax v. Gregory, 177 Wash. 465, 32 P. (2d) 560; State ex rel. Trenholm v. Yelle, 174 Wash. 547, 25 P. (2d) 569; State ex rel. Govan v. Clausen, 108 Wash. 133, 183 Pac. 115.
Furthermore, this action was brought under the declaratory judgment act (Laws of 1935, chapter 113;
“‘However, it is settled beyond peradventure of a doubt, notwithstanding some decisions apparently to the contrary, that a declaratory judgment action will lie to determine the validity of rights under a statute, even though no steps have been taken to enforce it, or that the effective date of the statute, when it would be subject to enforcement, has not arrived.‘”
The court continued:
“The author cites, as authority for the above statement, and we think rightly, this court‘s opinion in Acme Finance Co. v. Huse, 192 Wash. 96, 73 P. (2d) 341, 114 A. L. R. 1345. See, also, Pierce v. Society of Sisters, 268 U. S. 510, 69 L. Ed. 1070, 45 S. Ct. 571, 39 A. L. R. 468, and State ex rel. Yakima Amusement Co. v. Yakima County, 192 Wash. 179, 183, 185, 73 P. (2d) 759.”
Accord: Department of Financial Institutions v. General Finance Corp., 227 Ind. 373, 86 N. E. (2d) 444, 10 A. L. R. (2d) 436; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. (2d) 221; Hoagland v. Bibb, 12 Ill. App. (2d) 298, 139 N. E. (2d) 417.
The superior court was correct in determining that Laws of 1959, chapter 294, § 5, p. 1418, and Laws of 1959, chapter 294, § 3, p. 1413, were unconstitutional and enjoining their enforcement.
The judgment is affirmed.
MALLERY, DONWORTH, and OTT, JJ., concur.
WEAVER, C. J., and HILL, J., concur in the result.
FINLEY, J. (dissenting) — Chapter 294, § 3(1), Laws of 1959, requires that employers pay time and one half for all work (a) over eight hours per day, or (b) over forty hours per week. Section 12 of the act, however, provides that as to any employer and employment (involving interstate commerce) which are subject to the Federal Fair Labor Standards Act (
Because of this result, the majority opinion holds that classification-wise the state act violates the state and federal constitutional prohibitions against the denial of equal protection. I do not agree.
Neither the majority opinion nor the briefs of any of the parties make any reference to the case of Packer Corporation v. Utah (1932), 285 U. S. 105, 76 L. Ed. 643, 52 S. Ct. 273, 79 A. L. R. 546. The state of Utah enacted a statute (Laws of Utah (1921), chapter 145, § 2, as amended by
“It shall be a misdemeanor for any person, company, or corporation, to display on any bill board, street car sign, street car, placard, or on any other object or place of display, any advertisement of cigarettes, cigarette papers, cigars, chewing tobacco, or smoking tobacco, or any disguise or substitute of either, . . . provided that nothing herein shall be construed to prohibit the advertising of cigarettes, cigarette papers, chewing tobacco, smoking tobacco, or any disguise or substitute of either in any newspaper, magazine, or periodical printed or circulating in the State of Utah.” (Italics mine.)
The italicized proviso was added in 1929, because the supreme court of Utah, in State v. Salt Lake Tribune Publishing Co. (1926), 68 Utah 187, 249 Pac. 474, 48 A. L. R. 553, had held the basic statute unconstitutional as violative of the federal commerce clause. The statute, as amended, was attacked on the ground that the exclusion of newspapers, periodicals, etc., from the coverage of the act constituted arbitrary classification. The United States Supreme Court rejected the argument that the classification was arbitrary and constitutionally invalid, saying:
“The classification alleged to be arbitrary was made in order to comply with the requirement of the Federal Constitution as interpreted and applied by the highest court of the State. Action by a State taken to observe one prohibition of the Constitution does not entail the violation of another.” (Italics mine.) Packer Corporation v. Utah, supra.
Thus, if in the instant case the exclusion of interstate commerce type employment from the coverage of the state act was necessary in order to observe the prohibition against state regulation of interstate commerce implicit in the federal commerce clause, the classification, contrary to the views of the majority, is not arbitrary, but rather is perfectly proper; i.e., constitutional. The majority, however, assert that it was not necessary for the state legislature to establish the particular classification. They point to a provision contained in the Federal Fair Labor Standards Act (
I cannot agree with the disposition of this issue by the majority for two reasons. In the first place, I am not convinced that the state legislature (notwithstanding § 218 of the Federal Act) could have made all of the requirements of § 3 of the state act applicable to interstate commerce type employment. The reason becomes clear and, I believe, unanswerable upon a closer examination of § 218 of the Federal Act. The section provides that, with respect to employers engaged in interstate commerce, a state may establish (1) a minimum wage higher than the minimum wage established by the Federal Act, or (2) a maximum work week lower than the maximum work week prescribed by the Federal Act. But § 3 of the state act, while imposing a sanction against work in excess of forty hours per week the same as the Federal Act, in addition prescribes a maximum work day of eight hours. Since there is no mention in § 218 of the Federal Act of a maximum work day (as opposed to a maximum work week), how can it be said that the section gives permission to the states to prescribe a maximum work day for employees engaged in such interstate commerce type employment as is covered by the Fedderal Act? Section 218 permits imposition by the states of a more restrictive maximum work week. There is no permission whatsoever as to the imposition by a state of a maximum work day. The majority have cited no authority, and I have found none, demonstrating that the state legislature, pursuant to § 218 of the Federal Act, could have required those employers covered by the Federal Act (interstate
Assuming very tentatively and solely for the purpose of argument that somehow or other, by virtue of § 218 of the Federal Act, the state legislature might have made all the provisions of § 3 of the state act applicable to interstate commerce type employment, nothing expressed in the Federal Act requires the legislature to do so. Very clearly, the Federal Act could only be permissive — never mandatory. And yet, under the holding of the majority, in order for a state to enact constitutionally valid wage hour legislation, it must either (1) make its act applicable, alike or equally, to both interstate and intrastate commerce, or (2) enact legislation applicable solely to intrastate commerce, but containing only such wage hour requirements as are identical with those contained in the Federal Act. According to the majority opinion, solely because of the permission it deems has been granted to the states by § 218 of the Federal Act, a state cannot establish wage hour requirements applicable only to purely local employment which are in any way different from the requirements of the Federal Act. To do so, says the majority opinion, is to create an arbitrary classification in violation of the equal protection provisions of the state and federal constitutions.
I recognize that the Federal Congress in the exercise of its commerce clause powers may expressly permit what in effect amounts to state regulation of interstate commerce. In re Rahrer (1890), 140 U. S. 545, 35 L. Ed. 572, 11 S. Ct. 865. However, there is no indication in the Rahrer case that the Federal Congress by enacting legislation permitting
On the other hand, there is the idea or consideration that intrastate (local) business should not be regulated more burdensomely than interstate (nonlocal) business. Inherently, this idea is engaging and certainly not lacking in merit. This, of course, is the idea emphasized by the majority in the instant case. Implemented by careful research, citation of authorities, and scholarly writing, the idea moves dramatically in the direction of invalidity of the state act. At the same time, however, it cuts cleanly across the first consideration above noted; for, carried to the extreme, it renders the validity of state regulation of intrastate commerce dependent wholly upon what the national government has done with respect to interstate commerce.
Thus, dependent upon which of these two ideas or considerations is emphasized or evaluated more significantly, state action such as the legislation before the court in the instant case may be said either to violate or not to violate the underlying constitutional prohibitions against denial of equal protection. Of course, where a state is powerless to enact regulatory legislation applicable to both intrastate and interstate commercial activity, its exclusion of interstate commerce from the coverage of such legislation is reasonable, and the resultant classification is not arbitrary. Packer Corporation v. Utah, supra. However, to say, as do the majority respecting § 218 of the Federal Act, that the picture is changed where the Federal Congress has seen fit to allow state regulation of interstate commerce is to subordinate the notion
ROSELLINI and HUNTER, JJ., concur with FINLEY, J.