164 Wis. 228 | Wis. | 1916
Lead Opinion
Tbe following opinions were filed May 2, 1916:
Three questions are presented for determination upon this appeal:
(1) Does tbe statute limit tbe number of hours women may be employed in any one calendar day where tbe work is done partly before and partly after 8 o’clock p. m. of that day?
(2) Is. tbe statute void for tbe reason that it unlawfully delegates legislative power to tbe industrial commission ?
(3) íf it is held that the provision delegating certain powers to tbe industrial commission is unconstitutional and therefore void, can tbe remainder of tbe act stand as a valid enactment ?
So construed, the law is reasonable and the intent of the legislature is given effect. Construed in accordance with the contention of the defendants, it would permit a female to •work fourteen or more hours in one calendar day. Such a construction would be subversive of the purpose of the law and would lead to the absurd result of permitting women to work more hours per day when the service is rendered partly in the nighttime than would be permitted if the work were all done in the daytime, and that in the face of a declaration by the legislature that night work is more detrimental to the health of women than day work. Such a construction should be avoided. State ex rel. Husting v. Board of State Canvassers, 159 Wis. 216, 150 N. W. 542.
It bas been said by Chief Justice Joi-iN Marshall that
“The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 6 Cranch (10 U. S.) 87, 128.
This principle, enunciated early in the development of the constitutional law of this country, has been repeatedly recognized; affirmed, and acted upon by this court. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 549, 90 N. W. 1098; State ex rel. Hessey v. Daniels, 143 Wis. 649, 653, 128 N. W. 565; State v. Redmon, 134 Wis. 89, 112, 114 N. W. 137. We approach this question with a full appreciation of the duties, responsibilities, and obligations of the court in the premises.
“The legislative power shall be vested in a senate and assembly.” Sec. 1, art. IV, Const.
It is a principle of elementary law that “under our constitutional form of government the legislature cannot delegate legislative powers to any officer or to any body of persons, individual or corporate, aside from the power to confer local legislative and administrative powers on county boards and municipal corporations.” State ex rel. Carey v. Ballard, 158 Wis. 251, 257, 148 N. W. 1090.
The exercise of the police power of the state for the protection of women and children by prescribing the hours in which they may work in certain occupations, the conditions under
“They are mentioned only for the purpose of calling attention, to the probability that other changes of no less importance may be made in the future, and that while the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and that the constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land.
“Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with in*235 creasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise.” Holden v. Hardy, 169 U. S. 366, 387, 18 Sup. Ct. 383.
What is true of the constitution of the United States is true of the constitution of the state of Wisconsin, except perhaps that the latter may be more easily amended. It is as true of one as of the other, they should be so construed, as far as possible, as to effectuate rather than to defeat the will of the people as expressed in legislative enactment.
The thing which is vested by our constitution in the senate and assembly and which cannot be delegated is “legislative power,” a term more easily understood than defined. A simple definition is that it is the power to make laws. In re Appointment of Revisor, 141 Wis. 592, 598, 124 N. W. 670. Law is defined as “the aggregate of those rules and principles of conduct which the governing power in a community recognizes as those which it will enforce or sanction, and according to which it will regulate, limit, or protect the conduct of its members.” Bouv. Law Diet. The power, then, which is vested in the senate and assembly and which cannot be delegated is the power to declare what rules and principles of conduct shall govern the citizens of this state and which shall be enforced and according to which the conduct of citizens of this state is to be regulated, limited, or protected. The provision delegating to the industrial commission the power to fix “reasonable classification, and to issue general or special orders fixing a period or periods of time, or hours of beginning and ending work . . . which shall be necessary to protect the life, health, safety or welfare of any female,” is manifestly an attempt to delegate to the industrial commission the power and authority to declare those rules and principles of conduct which shall be enforced in this state as regulating or limiting the conduct of the citizens thereof in relation to the
All occupations are not prejudicial to the health and welfare of women. The power to declare what classes of occupations are so prejudicial is vested in the legislature. Even those occupations which admittedly are inherently detrimental to the health of women may not be so if conducted under certain prescribed conditions or if the hours of employment are sufficiently limited. It is the duty and function of the legislature to declare in a general way under what conditions women shall be allowed to labor and to fix the limitation as to the hours during which they may be required to perform labor. This duty it cannot delegate.
The rule forbidding the delegation of legislative power is based upon experience and is vital to the maintenance of the integrity of our system of government. Field v. Clark, 143 U. S. 649, 692, 12 Sup. Ct. 495. The practical result of a delegation of legislative power is to remove the specific constitutional restrictions thrown about the exercise of that power. This is strongly illustrated by the orders attempted to be issued by the industrial commission under this statute, which are in part as follows:
"Order No. 1.
“In pea-canning factories where the laws regarding safety and sanitation and the orders of the industrial commission issued thereunder are complied with and where due provision has been made for handling the crop, women employees may be employed not to exceed ten hours each day between the beginning and ending of work, exclusive of meal times.”
“Order No. 2.
■ “During the rush season, when abnormal conditions prevail by reason of breakdowns, bad weather, or climatic changes, women who are engaged in the process of canning only, may be employed not to exceed twelve hours each day from beginning to ending of work, exclusive of meal times, provided that such twelve-hour days shall be limited to fifteen*237 in any one year; and provided further that time-and-a-half pay shall be given for all time worked over ten hours a day. A day shall be considered to be the period from beginning to ending of work in any twenty-four hours.”
Attention is called to order No. 2. Are the provisions of this order in the interest of women employees or in the interest of their employers ? Does the amount of wages a woman receives for doing certain specified work determine whether or not the work is detrimental to her health ? Is it in the interest of the public to permit women to work under unhealthful conditions for high wages? The power granted by the statute to issue general orders “to protect the life, health, safety and welfare of any female” is here exercised to prolong the hours during which a female may be required to work and in the interest of her employer and not in her interest. Then, too, what would a special order “to protect the life, health, safety and welfare of any female” be? Is it supposed that the commission should determine what hours a particular female should be allowed to work for a designated employer at a designated task? This is a thing the legislature itself could not do.
Having under consideration the validity of a statute providing that “it shall be unlawful and presumptively injurious to persons and property to drive piles ... in Dock river, within the limits of the county of Nock,” this court said:
“This statute is discriminating and class legislation, in violation of the spirit of our constitution, and contrary to the principles of civil liberty and natural justice. It gives to a certain class of citizens privileges and advantages which are denied to all others in the state under like circumstances, and subjects one class to losses, damages, suits, or actions from which all others, under like circumstances, are exempted. ... Its operation is restricted and partial to that part of Rock river within the county of Rock, while said river elsewhere and all other rivers are excluded. ... It would be difficult, if not impossible, to crowd into so short a statute any*238 more or greater violations of that principle, so essential to a-free government, of ‘equal, general, and standing laws.’ For these reasons this statute is unconstitutional and void.” Janesville v. Carpenter, 77 Wis. 288, 302, 303, 46 N. W.. 128. See State ex rel. Kellogg v. Currens, 111 Wis. 431, 434, 87 N. W. 561.
However, 'the requirement that laws shall be general in their application does not prevent classification, and a law is said to be general when it applies to all persons of a specified class in the same manner and to the same extent.
“It cannot be denied but that our constitutions, state and federal, are calculated to secure equal protection to all persons, subject to the rules of just classification. When by statute a person, natural or artificial, is denied an equal remedy in the law or equal protection in the courts such statute is void. . . . To this broad rule of equality of all persons before the law is the exception of the right under certain circumstances of proper classification, but this classification must be reasonable and based upon certain rules which bear a just relation to the act in respect to which the classification is made.” Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 157, 113 N. W. 456.
“While it is true that the necessity and propriety of classification are primarily legislative questions, it is also true that the legislature must keep within the limits of constitutional bounds.” Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 159, 113 N. W. 456, citing with approval the rule laid down by the supreme court of Minnesota as follows:
“The trae practical limitation of the legislative power to •classify is that the classification shall be upon some apparent natural reason — some reason suggested by necessity, by such a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or propriety of different legislation with respect to them.” Nichols v. Walter, 37 Minn. 264, 272, 33 N. W. 800.
If the people of this state desire to have vested in some constituted authority the power to so minutely regulate their affairs as to prescribe the conditions under which any female may be employed in certain occupations, making as a part of
The industrial commission or other designated governmental agency may properly be charged with the performance of many duties and the exercise of many powers in relation to the subject matter of this statute. It is impossible to set exact limits or to specify in detail in advance the duties and powers that may be so delegated and vested. Observing the spirit as well as the letter of the decisions of this court, there should be little difficulty from a practical standpoint in keeping within the limits of constitutional restraint. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905; State ex rel. Buell v. Frear, 146 Wis. 291, 131 N. W. 832, and other cases already referred to, deal exhaustively and authoritatively with this matter.
In State ex rel. Buell v. Frear, supra, speaking of the authority conferred upon the civil service commission, the court said:
“The authority thus conferred invests the commission with no arbitrary and uncontrolled discretion, but directs them to ascertain the facts and to apply the rules of law thereto under the prescribed terms and conditions. Such action is not legislative in character, but is the performance of an executive- and ministerial duty within the regulations provided in the act. ...
“No provision of the act, directly or by implication, authorizes any rule to be made that can add to or in any way alter or amend the regulations made by the law. Only such rules are authorized as serve to provide the details for the execution of the provisions of the law in its actual administration, to fix the way in which the requirements of the statute are to be met, and to secure obedience to its mandates.” Pages 305, 306.
The general principle could not perhaps be stated in more apt and appropriate language. We conclude that the pro
3, Tbe question then arises, May tbe remainder of tbe statute stand as a valid enactment ? It is clear that tbe legislature intended to limit tbe hours wbicb women might be employed in tbe occupations specified, and that such regulations as are prescribed are by tbe express terms of tbe statute to remain in force for some considerable length of time. There is no reason to suppose that tbe legislature would not have adopted tbe statute as it stands without tbe provision hereby declared to be void as in violation of tbe constitution. Tbe law is complete as it stands, and tbe void provision does not seem to have been tbe inducement for tbe enactment of tbe remainder of tbe law. State ex rel. Carey v. Ballard, 158 Wis. 251, 148 N. W. 1090; State ex rel. Husting v. Board of State Canvassers, 159 Wis. 216, 229, 150 N. W. 542.
By the Court. — The order appealed from is reversed, and tbe cause remanded for further proceedings according to law.
Rehearing
Tbe respondent moved for a rehearing.
In support of tbe motion there was a brief by Sturdevant & Farr.
The following opinion was filed November 14, 1916:
Since the opinion in this case was filed the matter has been fully reargued by brief, and upon further study and reflection we are of the opinion that the statute may properly be construed as laying down the general rule that'women shall not be permitted to work in any place for such a period of time as shall be prejudicial to their health and authorizing the industrial commission upon investigation to determine as a fact what class or classes of employment are dangerous or prejudicial to the life, health, safety, or welfare of females, and to determine as a fact how long females may be engaged in the several classes of employment reasonably without danger or prejudice to the life, health, safety, or welfare of such females, and to establish by ^general orders such classification and the time which females may labor therein, so found; and we are of the opinion that as so construed and to that extent the law should be upheld, for the reason that
“The authority thus conferred invests the commission with no arbitrary and uncontrolled discretion, but directs them to ascertain the facts and to apply the rules of law thereto under the prescribed terms and conditions. Such action is not legislative in character, but is the performance of an executive and ministerial duty within the regulations provided in the .act.” State ex rel. Buell v. Frear, 146 Wis. 291, 305, 306, 131 N. W. 832.
By the Gowt. — The motion for a rehearing is denied, without costs.
Concurrence Opinion
(concurring in the result). I agree that tbe statute limits tbe hours of work to ten hours when tbe work is done partly before and partly after 8 o’clock p. m. and hence that tbe demurrer to tbe complaint was properly overruled.
The question of tbe validity of those portions of tbe statute authorizing tbe industrial commission to make general or special orders is not necessarily involved in tbe case, and I withhold my assent to that part of tbe opinion wbicb bolds such provisions void as unlawful delegations of legislative power. When that question is essential to tbe decision of a case I shall wish to give it more careful examination than I am able to give it now.