*1 (No. 32640 .
Vissering et Frank al., vs. Appellees, Co. Mercantile et al., Director of
Annunzio, Labor, Appellants. Opinion September 24, denied Nov. Rehearing filed 1953— *2 Hershey, J., dissenting. of Attorney General, Springfield, Castle, Latham Raymond and A. Sarnow, S. Zola Wines, C.
(William for of counsel,) appellants. Groves, ' Pope and Giefin, of Win- Chicago, Ballard, & C. of (Thomas Springfield, Newicirk, & ning, Lindner Montgomery coun- of and Winning, S. Jr., Strachan, for sel,) appellees.
Mr. of court: delivered opinion Bristow Labor, General, Director of Attorney The defendants, Public and Treas Accounts, of Auditor of Finance, Director a decree have from Illinois, appealed State urer, uncon County the circuit court of declaring Sangamon in relation to minimum fair stand the act wage stitutional minors, ards (Ill. 1951, chap. for women Rev. Stat. its enforcement de by et and enjoining par. seq.,) 198.1 instituted retail by in a fendants, plaintiff proceeding and as individually taxpayers. enterprises, five issues essentially direct legal This appeal presents is a exer- whether the act constitutional determination: for whether section 3, authorizing cise of the police power; make certain investigations, of Labor Department constitution, article II of the 6 of State violates section sec- seizures; whether unlawful searches relating administra- act an judicial tion confers power upon arti- of article and section body tive violation III constitution; cle VI of whether State orders, of review of the act, defining scope Department’s the due- the court violates judicial deprives power, constitutions; clauses of the and Federal process whether reason of those unconstitutionality the entire act is rendered void. provisions From the retail pleadings appears plaintiffs, merchants situated members of a similarly class, allege of Labor, to the which is act, pursuant entitled act “An in relation to minimum fair stand- wage ards for women and minors, penalties providing the violation has sur- make thereof,” proceeded for the retail vey trade, consists of investigating to women and minors in certain retail wages paid engaged *3 in has demanded that occupations; certain writing .plain- tiffs furnish information from their has books; private orally demanded from the Mandel Inc. plaintiffs Brothers, and Chas. A. the their Stevens & of production Co. private books without warrant or fail- process, upon plaintiffs’ ure to therewith, defendants Director comply of Labor General Attorney have filed certain informations against of plaintiffs, which, assert, constitutes filing plaintiffs an unlawful their of to the taking property contrary and Federal constitutions. further Plaintiffs de- that allege fendants are about to funds in the expend public enforce- ment of the which act, bewill because expenditures illegal unconstitutionality of act. Plaintiffs and other members of the similarly class situated that complain they have suffered, and will continue to suffer, in- irreparable for which jury, have they no at adequate hence remedy law, they pray that the act be declared unconstitutional, and that defendants enjoined be from expending funds to administer the act, and from it enforcing against them. con- the act plaintiffs
The of provisions specific if act even void, render the tend unconstitutional and are are it were exercise police power, otherwise proper sections 3, 9 the De- in that it is substance section provided
Under and ascertain has to investigate partment Labor in in and minors any of women occupation State; any enter the business of employer place books, women and for the of inspecting minors purpose the ques- records that bear on rolls and other registers, pay whether tion of their ascertaining purpose have are been, being, orders Department state- with; and from complied require employer ments to all women and minors in writing wages paid in his employment. if the has to believe
Under section reason 9, Department any that not orders under any complying employer cause his name act, summon him to show may why failed to observe the should be as having published nonobservance, orders, after a and, finding hearing name of such employer publish Department in and his order any failure observe newspaper in the State. there that shall no substance,
Section provides, fact, on any question decision from appeal but shall be a there review provided Rev. Act, the Workmen’s (Ill. Stat. Compensation on a any question from chap. 48, ruling par. 172.54,) order of law decision or Department. 2 of section 3, circuit court found subparagraph and held unconstitutional,
section and section *4 rendered the entire act of section unconstitutionality motion to court denied defendants’ void. Thereupon enjoining and entered a decree dismiss the complaint, Auditor of Finance, the Director Labor, Director of and their State Public Accounts and the Treasurer funds for administering from any expending agents and the Attorney defendants General act, enjoined the act plaintiffs. from enforcing against In is a first whether this act constitutional determining exercise of the we are that police power cognizant in criteria of exercise of the that proper police power, herent and plenary power legislature protect health, welfare, public safety (City Chicago general v. the statute Gunning System, Ill. whether 628,) is reasonably remedy evils which the designed legis lature has determined Brady, exist. v. Ill. (Stewart This court has sustained as a exercise 425.) proper numerous statutes labor contract affecting of women and People minors. In v. Ill. Elerding, 254 579, an act to ten the time limiting hours women em ployed hotels could work was held & valid; Ritchie Co. v. Wayman, Ill. 10-hour for day women mechanical employed establishment, or fac laundry was tory in Gill sustained; Boston Store, Ill. 70, an act hours labor of limiting minors under 16 years was age sustained. In the act under consideration the has legislature recog- nized that oppressive which are wages wages both less — than the fair and reasonable value of the services rendered, and less than sufficient to meet the minimum cost of living for necessary health —constitute an evil jeopardizing health and welfare of women and minors, who do not have equal bargaining power men. To remedy that evil the has established a legislature system whereby of women and minors employers may be required to pay fair which are wages, commensurate with the value of the services rendered.
This evil has been particular as a recognized proper subject for the exercise of the police power by numerous which have legislatures, enacted statutes with varying terms and regulating provisions women paid
113 in as recommendatory, were minors. statutes and Some and of as in Massachusetts; others, Oregon; compulsory, the some acts established legislative category, compulsory maintain women the standard based on cost of living standard in others embodied health, minors good some rendered; of the value of the services prescribed to deter- allowed a commission fixed and still others wage; Rev. la. mine Rev. 22 865; Wash. wages. Geo. L. L. 5 Harv. Rev. L. 565; 37 of these constitutionality
The first test of the wage O’Hara, in statutes came v. Stettler fixing 213 1917 of the United when Court States 629, U.S. Supreme in a Brandéis abstained from which decision, 4-4 Justice because of affirmed decision of interest, previous stat Court, Oregon Supreme upheld wage minimum ute for women and minors based cost of upon living. the attitude by reassured Thereafter, courts, court of the affirmed nation, validity highest their own and between minimum statutes, 1917 1923 laws in Arkansas, for women were v. wage (State upheld Crowe, (Williams Ark. 272, Minnesota, 4,) S.W. 130 197 Evans, v. Minn. 32, 495,) Washington, N.W. Rice, v. (Larsen Pac. 642, 1037.) Wash.
In Court of the 1923, however, United Supreme in Adkins Children’s States, Hospital, U.S. held minimum unconstitutional a law by Con- passed in the exercise over the District gress plenary power of Columbia for the benefit of women and minors based a standard of the cost to maintain them upon living health and morals.- Sutherland rendered good Justice Taft to which and Holmes filed majority opinion, Justices the rationale dissents. Inasmuch as of the ma- separate embodies some of advanced jority opinion arguments since that by herein, rationale was sub- petitioners will overruled sequently by court, presently appear, it is material set to note the forth. arguments Sutherland states, substance, that, although there is no such as absolute freedom of thing contract, yet freedom the rule and restraint justified exception, only by circumstances. exceptional Whether such circum- stances were in that case could present be determined only to those interferences analogy with liberty to contract which had been previously Those include upheld. statutes *6 rates fixing exacted charges by businesses impressed with public interest; statutes to relating performance work public contracts; statutes the char- prescribing methods acter, and time for payment wages; those the hours of labor. Minimum fixing while wage legislation, to the last analogous was deemed group, distinguishable, since the amount of is the heart of the wages contract, whereas the of hours leaves “the heart regulation untouched and tends to the essential preserve liberty contracting parties,” so that affirmation of the hour would regulations not necessitate minimum upholding wage legislation.
The court also stated that the selection of women em- as a class ployees was special since the arbitrary revolu- tionary in the changes contractual, and civil political status of women had them on an put level with equal men. More- over,, the law could not be deemed a valid exercise of the because it is police power to fix minimum impossible which can with even to all apply justice women; it cannot be shown that well women their paid safeguard morals any more than women; and the poorly paid declared basis of the statute is a to living wage employee, overlooking the moral requirement amount should be the paid just of the services equivalent rendered.
The Taft noted that dissenting opinion Justice was court not called to its socio-economic upon expose views, and that it could not sustain maximum hour logically regu- lations and at the time minimum same invalidate legislation. con- “I Holmes stated:
In his dissenting opinion Justice which upon not understand principle that I do fess can be women fix a minimum for to power fix a maximum to admit power those who denied by affected is equally 'hours of work. bargain for their half you whichever regulate.” was in that case interpreted
The majority opinion enact wage legislation only deny legislative was That the cost of interpretation measured by living. “The fea- statement: predicated upon Sutherland’s than other puts more ture of this statute perhaps that it exacts from is the fact on it a of invalidity stamp an arbitrary purpose employer payment basis causal connection with his business or no having work the to do. The basis is not employer engages value of the the extraneous circum- rendered, services but stances that the needs sum.” employee get prescribed in that
To conform with the statement, implication statute, Illinois as well as those of was drafted States, other to define a “fair com- “fairly reasonably one wage” mensurate with the value of services or class of service *7 rendered.” measures years to
During ensuing designed promote health and were safety Court, sustained by Supreme which steadily subordinated liberty contract to protective legislation. Hamilton, Harv. Rev. Freedom (37 535; L. of Contract, VI This trend cul Ency. Soc. 450.) Sci. minated in the Court’s reversal unequivocal Supreme the Adkins case in Hotel Parrish, West Coast Co. v. 300 379, where U.S. delivered majority opinion, Justice held valid a statute Hughes, based Washington upon sufficient to wage maintain women in health.
While did not minimize the health ob- Hughes jectives of the statute, as nevertheless, another specifying cogent for the ground decision correction of the eco-
116 nomic ills he exercise of through power, police an additional for justification constitutional suggested regu- lative measures. The court “There is an additional stated: consideration recent has compelling experience into a The a class brought light. strong exploitation (cid:127) workers who are in an to unequal position respect are bargaining pówer defenseless relatively against denial of is only not detrimental to their living wage, health and well but casts a direct burden for their being, on the We take support community. may judicial notice of the demand unparalleled for relief which arose during * * * period depression. community not to bound what is in un- subsidy effect for provide conscionable but direct employers, law-making correct the abuse which from their selfish power springs interest.” disregard public the court subordinated the Thus, liberty concept contract to the police legislature protect the health of women and and to an minors, unjust remedy economic burden upon community. After that imposed decision the minimum constitutionality of wage legislation for women, predicated only upon wage necessary sustain women in but health, on cost of living on the fair value of services rendered, was upheld by Fisher, courts. In re Pa. numerous 2d 96, Atl. 878; 344 23 Willis, Young Ky. 200, 2d Associated v. S.W. 5; 203 Industries Oklahoma Industrial v. Com. Welfare ornia 899; Okla. Pac. 2d. Drive-in-Restaurant 177, 90 Calif Clark, Assn. 2d v. Cal. Pac. 2d 287, People 657; on Siegel 2d Weingrad, N.Y.S. Information of
In the case the court Siegel held that although pres- ent New York minimum law women and minors was same substantially that held unconstitutional, York v. New ex rel. (Morehead Tipaldo, U.S. nevertheless, since 918,) S. Ct. Court in Supreme *8 the Parrish case overruled the on which expressly authority now may statute case based, present was the Tipaldo constitutional. deemed are decisions court that these State
We are cognizant con the Illinois in construing as limited value precedent even though 25,) Ill. Stevenson, 281 stitution (People essentially the same purport involve statutes they noted, hereinbefore as However, the same standards. exercises reasonable as sustained, have Illinois courts of labor the hours affecting police power, legislation Holmes, by as stated minors, and, women or hours) half (wages whichever affected, is equally bargain in the light it is our you Moreover, judgment regulate. Parrish of the Court case, Supreme approach Minimum the Illinois of the United therein, States a reasonable exercise Act be determined to be Wage of the in the act standards police prescribed power. and “Fair are Wages” defining “Oppressive Wages” to eliminate starvation for women and designed and to their and would minors, equalize bargaining power, therefore tend their health and welfare. These protect health and welfare the act are objectives of not destroyed or because the minimized, merely suggest, plaintiffs legis lature at the same time endeavored to effect that minimum in a manner which fair wage would also be to employers, by that the be related to the services ren providing That standard, dered. would even furthermore, satisfy more conservative court approach Adkins case, wherein the unconstitutionality statute wage was on predicated largely ground was not related value of the services. we have sustained herein
Although the constitutionality act, of this objectives is established that the means of administration and enforcement must also conform to the limitations Federal and imposed State constitutions.
Plaintiffs contend that of the act, which section 3 authorizes the and its to enter agents
118 and to and minors of business women place employing all rolls and records books, other inspect registers, pay in order to the of women and minors upon bearing are ascertain whether the being orders of of of the Illinois violates section article II with, complied seizures, searches and to unlawful constitution, relating the fourteenth amendment to Federal constitution. In de- constitutionality of support provision for fendants have cited valid Illinois statutes providing similar into the business affairs building investigations and loan insurance com- associations, 240,) (chap. 32, par. and banks, panies, pars. 1014, 1020,) (chap. (chap. 73, 744, that Plaintiffs, however, these statutes 1672, 8). par. urge are since relate to affected distinguishable they employments with a be to interest, consequently may subject public whereas section of the Minimum Act regulation, Wage to all women and minors. applies occupations employing This distinction is too tenuous. The cited statutes are measures enacted regulatory to the pursuant police power of the State; Act Minimum is also similarly, Wage sustained herein as a valid exercise being police power, enacted to the health and welfare of protect women and minors. In all of these statutes the power investiga- tion is authorized to and effectuate the implement objectives Inasmuch as particular law. all of them are police measures, there can be no for dis- cogent grounds legal tinguishing only investigative power provided Minimum Act, which Wage no broader than that power provided the other statutes. Hence those valid statutes cited defendants as properly regarded precedent sustaining validity of the act. In further support of this validity section defend- ants argue comparable in the provisions Federal Fair Labor Act Standards (29 U.S.C.A. secs. 209, 211a,) have been held constitutional. Supreme Court United States in Oklahoma Press Co. Publishing v. Walling, constitutionality sustained Ct. 494, S. U.S. Administrator whereby act in the Federal the provisions data regarding and gather to investigate is authorized of employment, and practices and other conditions neces- bemay records such places enter inspect a violation there has been determine whether sary provisions. in the enforcement aid act or which might the decisions court reviewed case the In the Walling investi- to the government’s relating scope had that a compromise and noted enterprise gate private interest, in a manner to secure public been worked out *10 only the ones against at the same time to private guard claimed. may which abuses from protection rightfully confines of the broad The court endeavored to propound the search the limitations of the within investigative power the Federal constitution, and seizure prohibition be for a law- “It is stated: enough investigation to within the authorized fully Congress purpose ** * are relevant command and the documents sought the this the of reasonable- inquiry. Beyond requirement the to be ness, including particularity ‘describing place * * * searched and the or to be person things seized,’ comes down to the documents to be specification pro- but not excessive for of the duced, adequate, purposes relevant inquiry.”
It is evident that section comes within those broad limitations. authorized is a lawful investigation i.e., to effectuate a minimum purpose, law for women and minors enacted under the validly and the police power; requirements reasonableness are met since the section authorizes only books and investigation records which bear on the question of of women and so minors, that any official must limit his investigating inquiry those issues, demand only documents relevant thereto. have however, endeavored to Plaintiffs, be- distinguish tween sustained investigative powers by Supreme 12Ó that those in section on the
Court, prescribed ground Act a in order to render subpoena the Federal requires Holland, v.Co. (Cudahy Packing investigation compulsory. Ct. In subpoena U.S. 357, 651.) operation, S. 315 requirement would be a since if record or formality, or information bore on the of women question it could be demanded and secured minors, ultimately by if Whereas, even if were stibpoena required. the statutory the document or not relevant to inquiry were constitutionally could not secure government purpose, even the document or information if statute required It is subpoena. the nature authorized investigation statute, exercise, not formalities attending is determinative. formality which With the exception au- subpoena, nature investigative power thorized under the Federal act is same that precisely under section The Federal act sustained was provided case, in the Walling because of the subpoena require- but because the ment, lim- was scope investigation ited to relevant related inquiry, reasonably valid stat- ute, such was essential to that investigation effectuate statute. Hence, section cannot be held to offend the search and seizure of either prohibitions the Federal or State constitutions.
Plaintiffs further contend the act, *11 authorizes the after a Department, hearing findings nonobservance of an in order, in publish any newspaper State names of any employers observe failing the order, judicial confers on the power in violation of article III and Labor section 1 of article VI of the Illinois constitution. The constitutional doctrine of separation is set forth powers in article. Ill, and the judicial of the is power vested the courts under section 1 of article VI. Plaintiffs argue publica- tion provided in section is tantamount to the imposition of a penalty an infraction of alleged without law, cause, of the merits of the a determination judicial an adminis- upon a function judicial confers consequently trative agency. cite Reid v.
In of this interpretation, plaintiffs support that a statute held Smith, where the court Ill. standard for pub to establish prevailing wage attempting or to be forfeitures penalties lic contracts and authorizing was uncon retained contract by body awarding con that the forfeiture stitutional on the provisions ground con judicial ferred an administrative agency power upon article of the Plaintiffs- trary to III Illinois constitution. monetary that the difference between the penalties argue in that and the statute, prescribed publication specified financial herein, which would inflict is not ultimately loss, material.
We cannot with that The contention. basic tenet agree of the Reid case that an is administrative body may not the judicial function usurp by How- penalty. imposing under ever, act the tribunal, by permitting or nonobservance an authorizing publication is order, not that since imposing penalty, information would be be public could knowledge printed newspaper consent irrespective or authorization of the administrative agency. financial loss which might ensue from the by publicity inflicted, adminis- trative case, Reid agency, but the public, which abstain might from from the purchasing com- offending just as the pany, would do in public response to any other undesirable This publicity. possibility re- public action cause financial might loss does not convert section 9 into a penalty nor can it provision, construed as con- judicial on ferring an administrative body. Hence no constitutional doctrines are infringed.
It be noted further that the publication authorized in section is not novel in Illinois statutory law, for similar publication result of administrative investí- *12 122 is authorized associations of loan when- building
gation it deem for of Public Accounts shall the Auditor ever interests of the (chap. par. 240.) best public, constitutionality of sec- Plaintiffs also challenge on judicial review, tion the act which relates to of 13 law, questions review of only ground permits in the courts of viola- thereby judicial deprives tion of section of article individuals 1 VI, deprives due of law under the process guarantees Federal constitutions. that all of fact questions arising
Section provides 13 act under the shall be decided and that there shall no Review of appeal therefrom. questions law is authorized under section of Workmen’s Act. that section of the Compensation Work- Although men’s Act authorizes a certiorari Compensation review by of both of fact and questions law, since section permits the certiorari to be utilized procedure only respect questions we must law, adjudge constitutionality this limited of review. scope
We are cognizant established distinction in the case law between constitutional requirements review from administrative bodies which are legislative char acter and those judicial semi or perform quasi-]udicial ex functions. (People rel. Radium Dial Co. Ryan, v. 597; Ill. Nega Railways Chicago Co. Ill. Ohio 482; Valley Water Co. v. Ben Avon Borough, U.S. 287.) In the case Nega the court exhaustively analyzed the cases involving constitutionality judicial provisions limiting review to questions of law. In its rationale the court recog nized that due judicial law process requires review questions of fact where the acts and orders of the admin istrative body are legislative character, but not where are they judicial character. The court held therein that since the function the Industrial Commission of" partook of a the nature judicial proceeding, functions were had power the legislature than legislative, rather judicial *13 law; hence, of to questions limit review judicial to violate due-process did not therein review provisions however, Where, the Federal constitution. clause of rate in character, tribunal are acts of the legislative the right the courts deny held that to has been making, would con the tribunal the facts and action of to review Commerce clause. stitute a violation due-process and ex Coal Co. Chicago v. Eastern Lumaghi Com. rel. ex rel. Commerce Com. Illinois Railway 243; Co. Ill. 332 Cleveland, Cincinnati, Chicago City Bloomington v. of Railway Co. Ill. St. Rouis
The acts of of pursuant Labor minimum minimum act in in controversy, establishing wage fair or modifying regulations establishing such are essentially implement rates, legislative rather than The functions are com- judicial. character to the rate functions of Commerce Com- parable making hence mission, section which the exclusive prescribes mode of review of decisions under the denies act, which review any judicial of of violates the due- questions fact, clauses of and Federal process constitutions, the court of their deprives judicial proper power. we have
Although sustained contention with plaintiffs’ reference unconstitutionality of section of the act, we cannot which accept plaintiffs’ construction, was sus- tained the circuit that the court, of unconstitutionality that section would render the entire act unconstitutional.
The cases reiterate the rule that the invalidity of one section of a law does not affect the of the re validity mainder unless it appears would not legislature have enacted the law without the invalid including portion. Lueder, (McDougall The Ill. intent 141.) legislative to enact the statute irrespective unconstitutionality of any is manifest particular provision section of “If the act, this provides, any act provision or circumstance, or thereof to person
the application and the the remainder of act held invalid application shall to other or circumstances such provision persons affected thereby.” invalid which we have held Furthermore, provision in the act as to render the act is not so integrated incapable executed. basic the establishment system being and enforcement minimum for women and minors set forth in statute is even operation capable though the mode review be held insufficient to judicial the constitutional satisfy for due requirements process Under these circumstances the law. unconstitutionality cannot invalidate the entire act, and the decree circuit court statute unconstitutional declaring defendants from or enjoining administering enforcing *14 properly should reversed. Decree reversed. Mr. Hershey, dissenting: I am with most the Although agreement majority I am unable to with it in opinion, agree It'is entirety. the my opinion publication provided the amounts to of a for an imposition penalty in- alleged fraction the law, without a judicial determination merits of the cause. Article III of constitution of of Illinois State divides of this powers government into three distinct execu- departments legislative, — and tive, judicial, exercise of prohibits any power by one of these departments thereof part properly to either of the other belonging departments. of a an penalty for imposition alleged infraction
of law is a penalty properly ex belonging clusively to judiciary. (Reid v. Smith, Ill. 147.) It is entirely unrealistic treat the under publication sec tion of the act as other than a anything penalty. Although the direct action of the administrative does agency not inflict the alleged noncomplying employer financial result the fact is majority cognizant loss, will loss of good financial loss through will be been have Could legislature reaction public. The determination that fact? less only cognizant less act of order is no Labor judicial because the sanctions are employed general simply con- is public. infringes penalty provision Section 9 stitutional doctrines. as
It is obvious that section not of such character to render the of the act unconstitutional. sections remaining It is from remainder of act. completely separable Failure to include this section have deterred likely would makes from law. legislature enacting Section 17 this in the perfectly clear, reviewed majority opinion.
(No. 32776 . Eugene Union vs. Appellee, Company, Electric Power Sauget et al., Appellants.
Opinion September 24, Rehearing denied Nov. filed 1953—