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

I am concurring specially because my approach to the results of the court's opinion and the conclusions upon which those results rest differ somewhat from the approach of that opinion. This opinion also attempts to set out with some definiteness the type of hearing which it is believed is required to satisfy procedural due process and where it may be placed in the procedure before the wage board and the Commission.

While I agree that the word "property" in its early meaning was not synonomous with "physical object" but meant a right in and to the object, I think it unnecessary in this case to attempt to define what is a property right as distinguished from a liberty. On the borderline where property rights and liberties meet there has been considerable controversy among writers of jurisprudence. It is not necessary to classify them at this time. That were better left until some case arises which requires that we definitely take a position.

It is unnecessary to determine whether in this case the right to enter into a contract, which includes the right to employ, is a property or an "economic right" or a fundamental liberty. With the conclusion that the due process clause has not been violated by the Minimum Wage Act, I can agree. With the restrictions on liberty set out in the opinion I am in general accord. I conceive that persons living under organized government are thought of as having certain rights — call them property right or liberties, it makes little difference in this case that these rights change from time to time because economic and social conditions change. Rights or liberties which exist in one period are, because of the change in economic and social conditions, abridged or denied in a succeeding age. There is only comparative immutability in individual rights. They exist against the general background of public welfare and in relation to it and ultimately may, because of it, be abrogated or curtailed. As late as 1856 the case ofWynehamer v. People, 13 N.Y. 378, held that there was such property right in liquor as to prevent prohibition of its sale or disposition if obtained before the prohibitory act went into effect, a holding which practically nullified any attempts at liquor regulation. But the growth of the evils attendant on traffic in liquor awoke the conscience of mankind to the point where its more stringent regulation and finally its abolition were demanded. What was the legal phenomenon there illustrated? That as the evils of liquor increased and their consequences became more costly and more apparent, society, through legislation by exercise of what was known as the police power, attempted to curb them. The same was true of child labor. Time was when the liberty of contract permitted employers to engage for long hours children of almost any age. Finally the conscience of mankind spoke in reference to the horrors of this growing evil and its consequences. The liberty of contract was accordingly abridged. Likewise, when economic competition and economic conditions compel or permit employers to drive down wages, or when the ill-effects of continued low wages for women become insistent, the legislature is constrained by the aroused conscience of mankind to remedy that condition. If it were not for the ability of government to cope with situations like this, it must signally fail to perform the very purposes of its existence. It was the recognition of this gradual change in the point of balance between a protection of the rights of individuals in the expression of their initiative and their energies and the similar duty to protect the members of society on which those energies impinged, that led us to say inState v. Mason, 94 Utah 501, 78 P.2d 920, 925, 117 A.L.R. 330:

"This balance between police powers and due process is, therefore, more or less in a state of unstable equilibrium, changing with sociological and economic developments. As the protection of the due process clause recedes, the police power advances."

The next question not considered in that opinion which presents itself is whether there are any criteria to aid the courts in determining whether this balance has shifted in those cases where long and well established rights of contract are by legislation sought to be curtailed or abolished. In cases where social legislation purporting directly to touch the lives of many people — mass social legislation — impairs or does away with long recognized rights, are there any criteria by which the courts may be guided in determining whether the due process clause any longer stays the application of the police power? This being a concurring opinion and therefore not authoritative, I may be permitted greater liberty in the expression of ideas which at their best present only a partial and perhaps tentative contribution to this particular field of the law.

While the words "shall not deprive any person of liberty or property without due process of law" are as definitely restrictive in expression as the restrictions against denying the right of free speech and other civil rights, they obtain their real and only force from the meaning which is given to the words "due process of law," a phrase which has defied definition except as it is given content according to its application to the particular concrete situation with reference to which it is invoked. Even the more specific and definable restrictions of the Constitution which have a fair degree of fixity of meaning are susceptible of controversy as to their application or the extent of it to various concrete situations. But "due process of law" is so indefinite as to amount to mere rhetoric until it is invested with meaning. The meaning with which it was invested has depended largely on the social or economic philosophy of those judges and legal writers who gave it meaning. In general, resort will have to be had to the rule of inclusion and exclusion so well expressed inDavidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616, as follows [page 104]:

"But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded."

The task remains, however, of seeking in this type of case some basic criteria to guide us in determining whether particular cases should be excluded from the protection of the due process clause or included in it.

In the course of social change, and in the very nature of the social processes, we may expect, in the future as in the past, times to arrive when there will be a demand for reforms which, for their effectuation, will require the curtailment of rights or liberties thitherto held as protected by the due process clause. When this demand becomes insistent enough, legislative action will result. Then, under the assumed power of the judiciary, it is for the courts to say whether the legislature has exceeded its power. And any such question must necessarily involve a balancing of the social effect of curtailing those established rights as compared to the supposed social benefits of the reform desired. Whether the due process clause should longer stay the application of the police power depends largely on which way the scales fall in this balancing of the effect of curtailment of the rights of one group of society as against the desired benefits supposedly accruing to the other groups. I think such consideration certainly must enter into the problem.

The first question results: Is each judge who has the problem before him to use only his own opinion in making the comparison? If so, the decision will depend almost entirely on the predilections of the judge, his social philosophy, the breadth of his social experience, and his understanding of social conditions. In the last analysis, the opinion of the judge in this particular field of constitutional law will in any event largely depend on those factors. But I think the opinion as to constitutionality (which is another way of stating the problem as to whether the due process clause holds back the application of the police power) must not depend so directly upon the characteristics of each individual judge.

What causes the legislature to use the police power to abridge rights formerly enjoyed is presumably the imperative of social necessity calling for legislative action. For this reason the action of the legislature itself is a very strong indication that the balance weighs in favor of the reform. In a large measure there has already been accorded a due and ample process of the law when the legislature has acted. The processes of the law certainly have been in large part properly and duly exercised.

We remind ourselves that the phrase "law of the land" used in the Magna Carta which Lord Coke said signified "due process of law" was meant to require the king to recognize that his will alone was not law (McKechnie's Magna Carta, Page 439), that all law did not reside in himself but consisted of the "Old English Code of customary law, subject to such changes in that code as the results of the Conquest had brought about" Taylor, Due Process of Law, Page 2. It was never meant to limit the power of the law making body which at the time of the Magna Carta consisted, such as it was, largely of the Barons and the Clergy. The Barons did not mean to curb their own power. Hurtado v.California, 110 U.S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232. And in spite of Coke's words in Bonham's Case, 8 Coke, 118A, Taylor, Due Process of Law, Page 18, the common law never did nor was meant to control Parliament. "The omnipotence of parliament over the common law was absolute." Taylor, Due Process, Page 16. The Law of the judges was "subordinate legislation; carried on with the assent and subject to the supervision of Parliament." Dicey, Law of the Constitution, Page 58.

When the states gained their freedom from England their constitutions contained the due process clause. Since they had been subject theretofore to written instruments, royal charters and proprietary grants — which limited the power of their law making bodies, the due process clause or its equivalent the "law of the land" contained in some of the early constitutions was construed not only as insuring the liberties of English people gained up to and through the revolution of 1688 and existing at the time of severance, but also as binding on the legislatures. With the adoption of the written constitutions of 1776 the typical English state in America reached "its full growth," Taylor, Due Process of Law, Page 252. But the idea that rights of contract had, by the due process clause, gained the status of absolutism rather than existed relatively to the general welfare, is indigenous to American judicial soil and of comparatively recent origin.

As a reaction from that doctrine and by way of watering down the doctrine of judicial supremacy the liberal dissenters on the Supreme Court of the U.S. have stood at about the point where they hold the due process clause protects only against legislation clearly unreasonable, arbitrary and unfair. But as to mass social legislation which interferes with established and existing rights, no criteria seem to have been consciously developed for determining the point at which legislation, although in a previous day clearly unconstitutional, may now be upheld.

But under our system of judicial supremacy, one cannot be deprived of liberty or property merely by following correct legislative processes. Such processes do not in themselves entirely serve the demands of "due process." Due process of law as used in state constitutions has been construed as a leash on the police power. But the leash is not of a fixed length. There must be, in case of a law abridging or abolishing rights for the avowed purpose of social protection, a social necessity grave enough to call for the legislative action. It is the imperative of this social necessity calling for legislative action which makes that action due process. The problem is, therefore, in this field shifted to one of ascertaining the method of determining whether the social necessity is grave enough to warrant the legislature in depriving or abridging rights theretofore recognized. One large factor, as said before, is the fact that the legislature has acted. That presents a strong presumption of the social imperative. But under our system of government it is not an irrebutable presumption. The social imperative for the change should be evidenced also by a crystalized enlightened public opinion which legislative action is supposed to reflect. When the need of reform becomes great enough that crystalized public opinion concludes that it were better to curtail the rights of some, with its attendant individual hardships and social effect, in order to effect a reform considered of greater moment, the legislature under pressure of such opinion takes action. It is this fair, informed, and enlightened public opinion which the judges should take into consideration, in case of any doubt as to whether the legislature acted under social compulsion in changing the economic and social equilibrium from the old point of balance which existed under the enjoyment of the thitherto established rights to a new one resulting from the curtailment of those rights with the resultant protection or creation of new rights in another group of society. And enlightened public opinion means, among other things, opinion not actuated by self interest except as that self interest is bound up with the good of the whole. It is true that unless the judge has power to lay aside his social philosophy and predilections he will usually judge such enlightened public opinion to be according to such predilections, but at all events the criterion allows, if his mind will permit it, a factor to enter into the processes of his reasoning which does not entirely depend on his personal viewpoint concerning the reform. Indefinite as this criterion is, there may be none more definite in this changing world. Legislatures may not, without translating into law the mere transitory vagaries of the electorate, too far precede this opinion nor lag too far behind it without endangering the very foundations of the state. This indefiniteness exists by necessity. It is part of the indefiniteness necessarily introduced into the due process clause itself when it was given a construction which made it apply to the protection of substantive rights as distinguished from and independently of any assurance of fair procedure in the doing away of those rights. Under the theory that due process froze a right and insured its existence for all time, there was introduced the conception of due process as having a function distinct from the assurance of fair procedure. But with recession of the theory that rights had, because of the due process clause, gained the status of a sort of absolutism — a conception peculiar to American constitutional law and of comparatively recent origin — and with the recognition that all rights were relative and subject to change with the march of social progress, there arose the intermediate conception that substantive due process was only a guarantee against the impairment or abolition of those rights before the time when social necessity required it. And in a sense this was itself a sort of procedural due process — not the procedure which was thought of as requiring fair play in method but a social process imperceptible and inexorable in its advance.

Assuming that the framers of the Constitution had in mind substantive as well as procedural due process, it were as if they had said:

"We recognize today that men have certain rights to be protected until the exercise of such rights under changing economic and social conditions may endanger society or a substantial portion of it. We cannot tell when that time will come. We must leave it to the future to determine. But we admonish the legislature not to interfere with those rights until social necessity requires it."

The action of the legislature in interfering with such rights itself presents strong evidence of that social necessity, and the court should not overturn such action, unless it is convinced without any reasonable doubt that the social exigencies which purport to make the legislation necessary do not in fact exist. And if there is any crystalized enlightened public opinion which supports the conclusion that the exigencies exist, the court should take that into consideration as evidence that the legislature acted in response to a social imperative even though the judge himself may not believe or has doubt as to the necessity. Enlightened and crystalized opinion is to the issue of constitutionality of a law abridging or denying rights as substantial evidence is to an issue of fact. True it is that judicial minds may differ as to the existence, nature, or extent of crystalized opinion, but this extraneous standard, indefinite as it is, is better than the self-contained ipso dixit opinion of the judge himself. While his personal opinion may be part of the enlightened public opinion, it is at the most only his opinion. He must look beyond his own preconceptions and his own opinion in determining whether the thrust of informed public opinion makes an advance of the police power on the protection of the due process clause necessary. This criterion of social necessity evidenced by enlightened public opinion presupposes experience and knowledge by the holders of such opinion of conditions from which it is deduced. It is presumed that the legislative act was passed in pursuance of the demands of such public opinion, and with due regard to the balance between the benefits of the reform supposedly inaugurated and the consequences to that group at whose cost the reform was made. The determination of the question of whether the situation is such as presents a case where informed and disinterested public opinion has concluded that the public welfare demands that rights formerly recognized be abridged or denied, depends on the opinion of the majority of the judges on the court and is, therefore, subject to that extent to human judgment and fallibility. So in the last analysis do all opinions of the court depend on the individual judgment of the men who constitute the court. That is only saying that all human institutions depend on the workings of the human mind and fundamentally can rise only as high as these human minds which direct them. The only assurance possible is to procure for judging positions those capable of judging. Only to that extent are the rights and liberties of citizens and the protection of society assurable.

This conception of the point at which the police power is held in check by the due process clause steers a course between the sophistry which contends that rights are fixed or immutable and not to be determined in relation to the public welfare and the idea, rejected under our system, that the legislature itself is the sole judge of the extent of the police power. Perhaps the reversal of the Adkins Case, Adkins v. Children's Hospital,261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785, 24 A.L.R. 1238, by the Parrish Case may be explained not so much in terms of error in the first case rectified by the second case as by a change in conception of the nature of private rights in relation to the public welfare; and therefore in terms of a change of personnel in the court only in so far as such changed personnel reflected the conception that the real criterion which should guide the court in its determination whether the police power permitted abridgment of the absolute right to employ women at such wages as one could get them for, was the enlightened public opinion as to the need of doing so. While the decision of the Supreme Court of the United States is not binding on us in this regard, it is highly persuasive that in this state the police power extends to protect women engaged in industry in such fashion. It is persuasive that the enlightened opinion of mankind has arrived at the point where it deems such legislation necessary in our competitive system to protect a large class of society.

It must be admitted that the upholding of the right of the legislature to pass minimum wage and hour laws presents a departure from the orthodox review of the private right of contract far reaching and decisive in its effects, both legally and economically. Whether for better or for worse only the future will reveal. A certain amount of cautious economic and social experimentation is necessary even though its consequences, while beneficial along some lines, may along others be detrimental. It is perhaps true as contended by plaintiffs that before the advent of minimum wage laws there has been a direct relation between the evils sought to be remedied in the conduct of the business and the public welfare. There is no attempt by the minimum wage law to regulate any practice in the conduct of the business itself which it is claimed directly impinges detrimentally on the public or the employee. It is not like a zoning law or a law regulating pool halls or dance halls, or one designed to require the employer to provide facilities for or desist from practices which affect the health and comfort of the employees. The raise in wages by the minimum wage law makes a money contribution to the welfare of a group. It provides more by which to live, and affects therein the lives of the workers which in turn affects the public welfare. Thus indirectly the business is supposedly contributing to the betterment of conditions. This is in keeping with the expanding idea of the responsibility of business to the public; with the idea that business is not something self-contained but a part of all society; that it is the numerator in one of a series of fractions all of which have the government as representative of society for their common denominator; that the integration of business with society demands that it be not sovereign in its field but that it serve the public both by the manner of its production and by making its contribution in the form of a living wage and thus become not only a profit making and goods producing or distributing agency but a vital factor in the upbuilding of a better society. It is to be admitted that the attempt to solve the social problem of the underpaid woman in this manner raises other problems perhaps as serious or more serious. But this again presents a case for cautious social experimentation. We may be comforted by the fact that it does not seem where tried elsewhere to have the devastating consequences predicted for it. But because it is somewhat revolutionary and because all such measures require caution and circumspection in the manner of their introduction, I think it is not a correct realistic position to hold that the Commission need not consider the effect of the minimum wage on the businesses which pay it. While the statute makes the standard a wage which will maintain health and welfare and thus logically seems to ignore the element of ability to pay, I suspect that there was a hope which went with the legislation that between the low and the high figure of permissible variation of opinion as to the wage necessary properly to maintain health and welfare, the Commission would choose that figure which would not work too much hardship on the merchant and the class of employees who might fall under the axe of personnel reduction. Certainly a wage fixed high enough to kill the business which produced it would in the end aggravate the very situation it attempted to remedy. No-wage is an aggravation of low-wage, and no-wage cannot maintain the health and welfare of women and minors even as well as a low wage. No one would advocate that the wage be so low as to satisfy the marginal employer. If it should be so as to permit only the best advantaged employer to pay it, it may tend to monopoly and in that way affect our whole economic structure, for the problem is linked with that of the small merchant competing against the greater effectiveness of the larger merchant and chainstore. Profound matters of economic policy are so involved that the wisest administration is none too ample to permit of the necessary economic adjustments. And at the best, we must expect that the horizontal minimum over a whole industry while equal in level will operate unequally in particular situations and inevitably produce hardship. That perhaps is the price we must pay for the ultimate desiderata, but the act must be administered so as to produce as few of these individual hardships as possible, consistent with producing the result desired.

The court's opinion states that the employer is, under the act, "not forbidden to employ anyone; not required to pay any set wage or to have people work any set number of hours." If he cannot pay the minimum for the maximum number of hours, the effect of the law is to prohibit him from employing anyone. I think the law does interfere substantially with the right of contract as he formerly enjoyed it, and I think it can be sustained only on the ground that it is a reasonable exercise of the police power which as above stated depends on whether the social situation the law is designed to accomplish is of sufficient moment to permit the pushing back of the protection of the due process clause so as to allow the police power to apply in that territory in which the employer was formerly permitted to operate without such interference. I see no reason to question the judgment of the legislature that the welfare of society will be sufficiently served by the legislation to lift the protection of the due process clause.

We have not the question of the reasonableness of the order before us at this time, but the question of constitutionality and correct procedure only. Whether the statute gives a right to have the reasonableness of the order tested out or, if it does not, whether it can constitutionally preclude the review is likewise not before us.

On the question of procedural due process: I concur in the conclusion that somewhere along the line opportunity must be given to the employer and employee and others interested to be heard. And that means not only to make speeches or to present agrument, but to present evidence. The structure of the act seems to be such as provides for an investigation by the wage board which may or may not involve an opportunity to present evidence; that there is nothing in the act which requires the wage board to take testimony. It evidently may obtain its data on the cost of living as it deems best. The act provides that the Commission shall make rules and regulations governing the mode of procedure of the wage board, but there is nothing which compels the procedure to be such as will require sworn testimony to be taken by the board. Hence, at the coming in of the board's report, the industry has its first intimation of what the Commission has before it in the way of a finding or a recommendation. Then at the public hearing the opportunity for putting in evidence for and against the board's recommendation must be allowed. Otherwise, the Commission could make an order far reaching and drastic in its nature without the parties interested in or affected by the order having any opportunity to introduce any evidence on the reasonableness of the board's recommendations. Somewhere along the line the parties affected must be given an opportunity to be heard and adduce evidence on their behalf. The matter, as said Mr. Chief Justice Hughes in Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773,775, 82 L. Ed. 1129,

"goes to the very foundation of the action of administrative agencies intrusted by the Congress with broad control over activities which in their detail cannot be dealt with directly by the Legislature. The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the Legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand `a fair and open hearing,' essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process."

In the Morgan Case, unlike the case at bar, the examiner took evidence in making his investigation. The parties, therefore, had opportunity to present evidence. But after the examiner made his recommendation to the Secretary of Agriculture, the latter, without giving notice to the parties as to the recommendations, made his order fixing reasonable rates.

"No opportunity was afforded to appellants for the examination of the findings thus prepared in the Bureau of Animal Industry until they were served with the order."

In the words of Mr. Chief Justice Hughes:

"The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one." (Italics added.)

The very difference between the Morgan Case and the instant case illustrates the fundamental principles here involved. In the Morgan Case opportunity was given before the examiner to adduce evidence as to the proper charge for stockyard service. That case may be misunderstood to hold that the parties should have opportunity to adduce evidence after the claims of the government were made known. We do not so interpret it. The evidence was adduced by the examiner and was in the record, but no opportunity was given to the parties to meet the claims of the government by argument on the evidence already adduced to show that the findings were unreasonable. In the instant case no opportunity was given to introduce before the wage board evidence as to the proper wage to fit the standard laid down by the statute; therefore, the opportunity to do that must come after the recommendations. If the board had taken evidence, giving interested parties the opportunity to be heard, and submitted the record, in all probability the requirements of "fair play" would have been met by granting the opportunity to take exception to the recommendations, together with an adequate opportunity to argue the exceptions. Said Mr. Chief Justice Hughes in the Morgan Case:

"Congress, in requiring a `full hearing,' had regard to judicial standards — not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. If in an equity cause, a special master or the trial judge permitted the plaintiff's attorney to formulate the findings upon the evidence, conferred ex parte with the plaintiff's attorney regarding them, and then adopted his proposals without affording an opportunity to his opponent to know their contents and present objections, there would be no hesitation in setting aside the report or decree as having been made without a fair hearing. The requirements of fairness are not exhausted in the taking or consideration of evidence, but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps."

The procedure may have been designed so far as possible to dispense with the necessity of employees' appearing and testifying contrary to their employers. Fear of losing their jobs on some trumped-up charge might keep them from testifying. But proof of cost of living of working women, wages paid, and cost of doing business does not need to be proved by testimony of the employees. At all events proper administrative procedure and procedural due process require that in matters as important and fundamental as fixing a wage which may, and in all probability will, affect a great area of business and many employees, opportunity must be given before the wage is fixed to present the position of those to be affected. After the wage is fixed, a rehearing can be had only on the ground that the Commission acted without, or in excess of, jurisdiction or the order was procured by fraud. On appeal the district court appears to have power to review the record only to see if the Commission acted without or in excess of its power or if the order was procured by fraud. Nowhere does the act expressly provide for any review as to the reasonableness of the order. Perhaps an unreasonable order might be beyond the power of the Commission to make. An order fixing a minimum wage for women is bottomed on an investigation which may not take the form of a judicial inquiry but on the wage board's investigation. Consequently, where the order affects fundamental rights and large numbers of employers and employees indiscriminately and is based, not on single issues dealing with a single employer such as the issues of accident, employment, status, dependency as in the compensation act, but on a composite conclusion as to the amount necessary to live decently and in health, the necessity for procedure which will permit somewhere in the process a full hearing for those affected is imperative. In this regard it will be noted that the Industrial Commission Act recognizes this requirement and gives the employers a right to be heard as to the reasonableness of any order made by the Commission for the safety, comfort or health of employees. R.S.U. 1933, 42-1-1 et seq.

I have some question as to whether the plaintiffs should not at the public hearing have tendered evidence or offered to do so. Perhaps they felt it useless so to do after the Commission put a limit on the time for each side and treated the hearing as one merely for the expression of sentiment for or against the minimum wage. The importance of the case compels one to lean against the contention that plaintiffs had waived their rights by not insisting on them.

I also agree that the case presents no such delegation of legislative powers as would render it unconstitutional. A primary standard or guide is provided. The wage must be one "not less" than that adequate to supply women and minors the necessary cost of proper living. This must be construed to mean that wage which will provide the necessary cost of a proper living. The standard does not need to be mathematical or exact or one by which only one conclusion can be reached. The standard here provided is hardly less definite than in the case where the President was required to determine whether he deemed duties or other exactions imposed by other governments on United States products to be reciprocally unequal or unreasonable (Field v. Clark,143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294); or the duty and authority to determine a reasonable rate (St. Louis I.M. S.R. Co. v.Taylor, 210 U.S. 281, 28 S. Ct. 616, 52 L. Ed. 1061;Inter-Mountain Rate Case, 234 U.S. 476, 34 S. Ct. 986,58 L. Ed. 1408; Avent v. U.S., 266 U.S. 127, 45 S. Ct. 34, 69 L. Ed. 202;New York Central Securities Corp. v. U.S., 287 U.S. 12,53 S. Ct. 45, 77 L. Ed. 138); or the authority to grant licenses by the Radio Commission "as public convenience, interest or necessity requires" (Federal Radio Commission v. Nelson Brothers Company, 289 U.S. 266,53 S. Ct. 627, 77 L. Ed. 1166); or the application of the "flexible tariff provision of the Act of September 21, 1922 (42 Stat. 858, 941) as authorized in the President, (Hampton Co. v. U.S.,276 U.S. 394, 48 S. Ct. 348, 72 L. Ed. 624); or authority on the part of the Secretary of Treasury

"Upon recommendation of a board of experts to establish uniform standard of purity, quality, and fitness for consumption of all kinds of teas imported in the U.S. (Buttfield v.Stranaham, 192 U.S. 470, 24 S. Ct. 349, 48 L. Ed. 525); or the authority given to Secretaries of the Treasury, Agriculture, Commerce, and Labor to make rules and regulations permitting `reasonable' variations from the legislative requirements that all packages of food be conspicuously marked in terms of weight, measure, or numeral count (U.S. v. Shreveport Grain ElevatorCompany, 287 U.S. 77, 53 S. Ct. 42, 77 L. Ed. 175); or authority granted to the Interstate Commerce Commission to order acquisition wherever it should be `of opinion, * * * upon application of any carrier or carriers * * * that the acquisition, to the extent indicated by the commissioner, by one of such carriers of the control of any other carrier or carriers * * * will be in the public interest" (New York CentralSecurities Corp. v. U.S., 287 U.S. 12, 53 S. Ct. 45,77 L. Ed. 138; Interstate Commerce Act § 5, 49 U.S.C.A. § 5).

As stated in the case of Sears, Roebuck Co. v. FederalTrade Comm., 7 Cir., 258 F. 307, 312, 6 A.L.R. 358:

"With the increasing complexity of human activities many situations arise where governmental control can be secured only by the `board' or `commission' form of legislation. In such instances Congress declares the public policy, fixes the general principles that are to control, and charges an administrative body with the duty of ascertaining within particular fields from time to time the facts which bring into play the principles established by Congress. Though the action of the Commission in finding the facts and declaring them to be specific offenses of the character embraced within the general definition by Congress may be deemed to be quasi legislative, it is so only in the sense that it converts the actual legislation from a static into a dynamic condition."

The legislature acted on the subject so far as reasonably practicable and from the necessities of the case was compelled to leave the Commission the duty of bringing about the result pointed out by the statute. Red "C" Oil Co. v.Board of Agriculture of North Carolina, 222 U.S. 380, 394,32 S. Ct. 152, 56 L. Ed. 240.

In Hampton Co. v. U.S., supra, 48 S. Ct. 352, it was stated:

"If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power."

The language applies in the instant case.

In Cincinnati, Wilmington, etc., R.R. v. Commissioners,1 Ohio St. 77, 88, the court pointed out the distinction between

"the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law."

In this case the legislature definitely expressed its will that women in industry should be paid a wage to meet the cost of proper living. It left to the Commission the task of determining the facts on which the operation of the law was contingent and the further duty of determining the actual minimum wage which was to be found by applying the standard of the cost of proper living. In Tite v. Tax Commission, 89 Utah 404, 57 P.2d 734, the Tax Commission attempted to exercise a judicial function in that it was left to the absolute discretion of the Commission to inflict different penalties for exactly the same offenses. When the Industrial Commission makes its order in this case, it will necessarily fit all persons falling under differentiable categories equally, i.e., all women working in the same industry or in the same category. The consequences of course will not be the same on all employees or businesses, but neither would the consequences of the fine for speeding if applied to a rich as compared to a poor person be the same.

The wage board made no differentiation between the cost to maintain women in proper health and welfare and that to maintain minors in that condition, — nor between such cost in one locality as compared with others. Complaint was made of failure to do so. In the public hearing herein ordered, opportunity will be afforded to the interested parties to make a showing in that respect if they be so minded. For the reasons set out above I concur.