the open air. It was not arduous. Under these circumstances, the case at bar is indistinguishable from and is governed by Lochner v. New York, 198 U. S. 45. It there was held that a statute which prohibited labor for more than ten hours per day in an ordinarily healthy occupation was 'an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts,' and that 'Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.' That decision is binding upon the Legislature and courts of this Commonwealth. See also Opinion of the Justices, 208 Mass. 619, 622. The instant statute is indistinguishable in principle from the one there stricken down. That it relates in part to certain employees of railroads constitutes no ground for differentiation, for the class with which it deals, namely, 'baggagemen,' 'laborers' and 'the like,' groups together those whose work does not have relation to the operation of trains and the safety of passengers. It refers to those employed in different capacities in and about railroad stations, whose work does not concern the safety of the traveling public. Whether other considerations might arise as to crossing-tenders, if they stood alone, need not be discussed, for the dominating classification of the statute is of employees whose work has no direct relation to the security of those who travel by railroad. The conclusion that such a statute as that here presented is an unwarranted interference with individual liberty and an interference with property rights, and therefore contrary to constitutions which secure these fundamental rights, is supported by numerous decisions in other jurisdictions, most of them antedating the Lochner case, which is decisive and to the same effect. "Statutes limiting the hours of labor of employees of the Commonwealth, counties, cities and towns, Woods v. Woburn, 220 Mass. 416, Atkin v. Kansas, 191 U. S. 207, and of women and children, Commonwealth v. Hamilton Manuf. Co., 120 Mass. 383, Commonwealth v. Riley, 210 Mass. 387, affirmed in 232 U. S. 671, are upheld for quite different reasons, and without conflicting with the Lochner case." Since the foregoing case was decided the United States Supreme Court, upon April 9, 1917, has rendered its decision in Bunting v. Oregon, 37 Sup. Ct. 435, declaring constitutional a statute of the State of Oregon which provided that "no person shall be employed in any mill, factory, or manufacturing establishment in this State more than ten hours in any one day except watchmen and employees when engaged in making necessary repairs or in case of emergency where life or property is in imminent danger." While this recent case does not in terms expressly overrule the Lochner case, which the Massachusetts Supreme Court felt bound to follow, it is clearly beyond discussion that the Bunting case has replaced it and must be taken as a guide for subordinate and State courts in the future. In the Lochner case Justices Holmes and Harlan wrote dissenting opinions, Justices White and Day concurring. Mr. Justice Holmes expressed the view that the majority had decided the case "upon an economic theory which a large part of the country does not entertain." Mr. Justice Brandeis took no part in the consideration and decision of the Bunting case, as he had prepared a portion of the brief upon behalf of the State of Oregon. The Bunting case sustains the extremest regulation of hours of labor, with respect to persons of both sexes, to date. II. MINIMUM WAGE LEGISLATION. "It is only in recent years that the idea has gained a footing that the State might intervene to determine whether or not the earnings of an employee were inadequate for the reasonable maintenance of physical conditions, though this would seem to be not a very wide step from the consideration of the effect of long and exhausting hours of service upon health. However, the general regulation of the wage payment by statute has never been attempted in this country in private employments, in so far as the amounts to be paid the adult males are concerned; while for women and children only a few States have established a minimum wage by law, beginning with Massachusetts in 1912, eight other States following in 1913.” Monthly Review of the U. S. Bureau of Labor Statistics, IV. 687 (No. 5, May, 1917). The Massachusetts Minimum Wage provision will be found contained in Acts 1912, Chap. 706. There has been no constitutional determination of that legislation by the Massachusetts Supreme Court. The constitutionality of the Oregon Minimum Wage Law was challenged as being beyond the police power of the State and as violating due process of law. Stettler v. O'Hara (1914), 69 Or. 519; Simpson v. O'Hara (1914), 69 Or. 93. The Oregon Supreme Court in the Stettler case said: "We think we should be bound by the judgment of the Legislature that there is a necessity for this act, that it is within the police power of the State to provide for the protection of the health, morals and welfare of women and children and that the law should be upheld as constitutional." These cases subsequently were argued before the United States Supreme Court, Mr. Louis D. Brandeis, now one of the Justices, appearing upon the brief in favor of the law. Mr. Justice Brandeis not voting, the eight remaining members of the court divided equally, thus sustaining the decisions of the Supreme Court of the State.1 In Australia power is lodged in the Commonwealth Court to fix a minimum wage for men in all cases of interstate disputes.2 Great Britain passed the first minimum wage act in 1909. It provided for trade boards after the plan of Australian legislation and applied to the tailoring, lace-making, box and chainmaking industries. The Board of Trade was authorized to select a chairman and secretary and to appoint not more than one half of the members of each special trade board. If women were employed it was necessary to include a woman on the trade board. The specific duty of these wage boards was to fix a wage for time and piece work in each industry. The English coal strike of 1912 resulted in the passage of a minimum wage law applying to coal miners. The act provided for district boards to determine rates of wages in different parts of the country. 1 243 U. S. 629. 2 See 4 Commonwealth Arbitration Reports, 101. III. SALE OF FUEL BY MUNICIPALITIES. Under the rule that a municipality cannot enter into a commercial enterprise it has been held that it cannot buy and sell coal to its citizens as a business, thereby entering into competition with dealers in coal, inasmuch as such use of moneys is not for a public purpose, Opinion of Justices, 155 Mass. 601; Re Municipal Fuel Plants, 182 Mass. 605. On the other hand, it seems that a municipality may establish fuel or coal yards for the purpose of selling to the inhabitants of the municipality or to others in "an extraordinary emergency," as where persons desiring to purchase fuel cannot supply themselves through private enterprise; and in such a case the city may constitute itself an agent for the relief of the community, in which case money expended for the purpose would be expended for the public use. Re Municipal Fuel Plants, 182 Mass. 605; McQuillin, Municipal Corporations, IV, Sec. 1809. Mr. Justice Loring in 182 Mass. (supra) separately stated as his opinion that the conditions contemplated by the other justices as creating an emergency which would justify legislation authorizing temporary relief could not exist, and therefore that the remedy is purely theoretical and should not be considered. Since that time (1903) there has been such an extraordinary rise in prices of commodities, including coal (the latter article has recently been under governmental investigation), as to cast doubt upon Justice Loring's statement. IV. REGULATION OF TRADES AND PROFESSIONS. It is clearly within the police power of the State to regulate any trade or business where the health and general welfare of the people require it, provided this power is not exerted arbitrarily or with unjust discrimination, so as to infringe upon rights guaranteed by the Fourteenth Amendment to the Constitution of the United States. Reasonable regulations respecting professional qualifications are invariably upheld because they do not contravene any provision of the State or Federal Constitution. While such regulations are subject to judicial scrutiny upon fundamental grounds, "yet a considerable latitude of discretion must be accorded to the law-making power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment." Reinman v. Little Rock, 237 U. S. 171, 177. The principles pertaining to the exercise of the police power as applied to the regulating of trade or business have been considered in the following recent cases: Plumbers: Commonwealth v. McCarthy (1916), 225 Mass. 192, 196. Practice of medicine: Commonwealth v. Zimmerman (1915), 221 Mass. 185, 187. Plumbers: Commonwealth v. Beaulieu (1912), 213 Mass. 138, 142. Advertising for employees during strike: Commonwealth v. Libbey (1914), 216 Mass. 356. Theatrical exhibitions: Commonwealth v. McGann (1913), 213 Mass. 213. Gift enterprises: Opinion of Justices (1911), 208 Mass. 607. V. PURE FOOD LAWS. The right to prevent the sale of impure food, to inspect food, or even destroy it when found impure, rests upon the police power of the State, and is in no way impaired by the Federal Constitution. Every well-organized government has the inherent right to protect the health and provide for the safety and welfare of its people. It is a legislative prerogative to determine whether a certain article of food is detrimental to the health of the inhabitants of the State, and with that determination the courts cannot interfere.1 But the Legislature cannot forbid the sale of wholesome food. "I imagine," said 1 See Thornton, The Law of Pure Food and Drugs, 5-8 and cases cited. |