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Vissering Mercantile Co. v. Annunzio





APPEAL from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW, Judge, presiding.


Rehearing denied November 16, 1953.

The defendants, Director of Labor, Attorney General, Director of Finance, Auditor of Public Accounts, and Treasurer, of the State of Illinois, have appealed from a decree of the circuit court of Sangamon County declaring unconstitutional the act in relation to minimum fair wage standards for women and minors, (Ill. Rev. Stat. 1951, chap. 48, par. 198.1 et seq.,) and enjoining its enforcement by defendants, in a proceeding instituted by the plaintiff retail enterprises, individually and as taxpayers.

This direct appeal presents essentially five legal issues for determination: whether the act is a constitutional exercise of the police power; whether section 3, authorizing the Department of Labor to make certain investigations, violates section 6 of article II of the State constitution, relating to unlawful searches and seizures; whether section 9 of the act confers judicial power upon an administrative body in violation of article III and section I of article VI of the State constitution; whether section 13 of the act, defining the scope of review of the Department's orders, deprives the court of judicial power, and violates the due-process clauses of the State and Federal constitutions; and whether by reason of the unconstitutionality of any of those provisions the entire act is rendered void.

From the pleadings it appears that plaintiffs, retail merchants similarly situated as members of a class, allege that the Department of Labor, pursuant to the act, which is entitled "An act in relation to minimum fair wage standards for women and minors, and providing penalties for the violation thereof," has proceeded to make a wage survey for the retail trade, which consists of investigating wages paid to women and minors engaged in certain retail occupations; has demanded in writing that certain plaintiffs furnish information from their private books; has orally demanded from the plaintiffs Mandel Brothers, Inc. and Chas. A. Stevens & Co. the production of their private books without warrant or process, and upon plaintiffs' failure to comply therewith, defendants Director of Labor and Attorney General have filed certain information against plaintiffs, the filing of which, plaintiffs assert, constitutes an unlawful taking of their property contrary to the State and Federal constitutions. Plaintiffs further allege that defendants are about to expend public funds in the enforcement of the act, which expenditures will be illegal because of the unconstitutionality of the act. Plaintiffs and other members of the class similarly situated complain that they have suffered, and will continue to suffer, irreparable injury, for which they have no adequate remedy at law, hence they pray that the act be declared unconstitutional, and that defendants be enjoined from expending funds to administer the act, and from enforcing it against them.

The specific provisions of the act which plaintiffs contend are unconstitutional and render the act void, even if it were otherwise a proper exercise of the police power, are sections 3, 9 and 13.

Under section 3 it is provided in substance that the Department of Labor has power to investigate and ascertain the wages of women and minors in any occupation in the State; to enter the place of business of any employer of women and minors for the purpose of inspecting books, registers, pay rolls and other records that bear on the question of their wages for the purpose of ascertaining whether the orders of the Department have been, and are being, complied with; and to require from the employer statements in writing of the wages paid to all women and minors in his employment.

Under section 9, if the Department has reason to believe that any employer is not complying with any orders under the act, it may summon him to show cause why his name should not be published as having failed to observe the orders, and, after a hearing and finding of nonobservance, the Department may publish the name of such employer and his failure to observe the wage order in any newspaper in the State.

Section 13 provides, in substance, that there shall be no appeal from a Department decision on any question of fact, but there shall be a review as provided in section 19 of the Workmen's Compensation Act, (Ill. Rev. Stat. 1951, chap. 48, par. 172.54,) from any ruling on a question of law in any decision or order of the Department.

The circuit court found subparagraph 2 of section 3, section 9 and section 13 unconstitutional, and held that the unconstitutionality of section 13 rendered the entire act void. Thereupon the court denied defendants' motion to dismiss the complaint, and entered a decree enjoining the Director of Labor, the Director of Finance, the Auditor of Public Accounts and the Treasurer of the State and their agents from expending any funds for administering the act, and enjoined the defendants and the Attorney General from enforcing the act against plaintiffs.

In determining first whether this act is a constitutional exercise of the police power we are cognizant that the criteria of a proper exercise of the police power, that inherent and plenary power of the legislature to protect public health, safety and general welfare, (City of Chicago v. Gunning System, 214 Ill. 628,) is whether the statute is reasonably designed to remedy the evils which the legislature has determined exist. (Stewart v. Brady, 300 Ill. 425.) This court has sustained as a proper exercise of that power numerous statutes affecting the labor contract of women and minors. In People v. Elerding, 254 Ill. 579, an act limiting to ten hours the time women employed in hotels could work was held valid; in Ritchie & Co. v. Wayman, 244 Ill. 509, a 10-hour day for women employed in any mechanical establishment, laundry or factory was sustained; in Gill v. Boston Store, 337 Ill. 70, an act limiting the hours of labor of minors under 16 years of age was sustained.

In the act under consideration the legislature has recognized that oppressive wages — wages which are both less than the fair and reasonable value of the services rendered, and less than sufficient to meet the minimum cost of living necessary for health — constitute an evil jeopardizing the health and welfare of women and minors, who do not have equal bargaining power for wages with men. To remedy that evil the legislature has established a system whereby employers of women and minors may be required to pay fair wages, which are commensurate with the value of the services rendered.

This particular evil has been recognized as a proper subject for the exercise of the police power by numerous State legislatures, which have enacted statutes with varying terms and provisions regulating the wages paid to women and minors. Some statutes were recommendatory, as in Massachusetts; others, compulsory, as in Oregon; and of the compulsory category, some acts established a legislative standard based on the cost of living to maintain women and minors in good health, others embodied the standard of the value of the services rendered; some prescribed a fixed wage; and still others allowed a commission to determine wages. 5 Geo. Wash. L. Rev. 865; 22 Ia. L. Rev. 565; 37 Harv. L. Rev. 545.

The first test of the constitutionality of these wage fixing statutes came in 1917 in Stettler v. O'Hara, 213 U.S. 629, when the Supreme Court of the United States in a 4-4 decision, from which Justice Brandeis abstained because of previous interest, affirmed the decision of the Oregon Supreme Court, and upheld a minimum wage statute for women and minors based upon the cost of living. Thereafter, the State courts, reassured by the attitude of the highest court of the nation, affirmed the validity of their own statutes, and between 1917 and 1923 minimum wage laws for women were upheld in Arkansas, (State v. Crowe, 130 Ark. 272, 197 S.W. 4,) Minnesota, (Williams v. Evans, 139 Minn. 32, 165 N.W. 495,) and Washington, (Larsen v. Rice, 100 Wn. 642, 171 P. 1037.)

In 1923, however, the Supreme Court of the United States, in Adkins v. Children's Hospital, 261 U.S. 525, held unconstitutional a minimum wage law passed by Congress in the exercise of its plenary power over the District of Columbia for the benefit of women and minors based upon a standard of the cost of living to maintain them in good health and morals. Justice Sutherland rendered the majority opinion, to which Justices Taft and Holmes filed separate dissents. Inasmuch as the rationale of the majority opinion embodies some of the arguments advanced by the petitioners ...

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