Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083 (1936).

               PARRISH v. WEST COAST HOTEL CO.           581
 Apr. 1936          Opinion Per MILLARD, C.J.

[No. 26038. Department Two. April 2, 1936.]

ERNEST PARRISH et al., Appellants, v. WEST COAST
      HOTEL COMPANY, Respondent. «1»

[1] CONSTITUTIONAL LAW (53) - PERSONAL RIGHTS - LIBERTY TO
CONTRACT - MINIMUM WAGE FOR WOMEN. Laws of 1913, p. 602, Rem.
Rev. Stat., SS 7623 et seq. fixing a minimum wage for women
and children employed in any industry in this state, is not
unconstitutional as interfering with the freedom of contract,
since the state under the police power has public concern in
a wage not detrimental to health and morals; and it is
immaterial that the parties are of full age.

[2] COURTS (38-1) - DECISIONS OF UNITED STATES COURTS CONTROLLED
BY STATE DECISIONS. Where the state legislature and state
supreme court have found that a minimum wage statute is of a
public interest, the supreme court of the United States will
accept the judgment unless it is beyond question a plain,
palpable invasion of rights secured by fundamental law.

Appeal from a judgment of the superior court for
Chelan county, Parr, J., entered November 9, 1935,
upon findings in favor of the defendant, in an action
for services, tried to the court. Reversed.

C.B. Conner, for appellant.

Crollard & O'Connor, for respondent.

 582    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

therefore, exercising herein its police and sovereign
power declares that inadequate wages and unsanitary
conditions of labor exert such pernicious effect."
Rem. Rev. Stat., SS 7623.

"Sec. 2. It shall be unlawful to employ women or
minors in any industry or occupation within the state
of Washington under conditions of labor detrimental
to their health or morals; and it shall be unlawful to
employ women workers in any industry within the
state of Washington at wages which are not adequate
for their maintenance." Rem. Rev. Stat., SS 7624.

"Sec. 3. There is hereby created a commission to
be known as the 'Industrial Welfare Commission' for
the state of Washington, to establish such standards
of wages and conditions of labor for women and
minors employed within the state of Washington, as
shall be held hereunder to be reasonable and not
detrimental to health and morals, and which shall be
sufficient for the decent maintenance of women." Rem.
Rev. Stat., SS 7624-1/2.

From August, 1933, to May, 1935, when she was
discharged, plaintiff was in the employ of defendant hotel
corporation as a chambermaid at an agreed wage
which was less than the minimum weekly wage of fourteen
dollars and fifty cents as fixed by the Industrial
Welfare Commission under SS 3, chapter 174, Laws of
1913, p. 602, Rem. Rev. Stat., SS 7624-1/2. If payable at
the agreed wage, defendant owes plaintiff a balance of
seventeen dollars. If entitled to payment at the minimum
rate established by the Industrial Welfare Commission,
a balance of $216.19 is due to the plaintiff.

To recover that balance, plaintiff brought this action.
The cause was tried to the court, which found
that plaintiff was entitled to a recovery of seventeen
dollars against defendant. The court further found
that chapter 174, Laws of 1913, p. 602, in so far as it
applies to adult women, is an unconstitutional
interference with the freedom of contract included within

               PARRISH v. WEST COAST HOTEL CO.           583
 Apr. 1936          Opinion Per MILLARD, C.J.

the guaranties of the due process clause of the
constitution of the United States.

"No state shall make or enforce any law which shah
abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person
of life, liberty, or property, without due process of
law, nor deny to any person within its jurisdiction the
equal protection of the laws." Sec. 1, Amendment
XIV, Federal Constitution.

Judgment was entered accordingly. Plaintiff appealed.

[1] In Larsen v. Rice, 100 Wash. 642, 171 Pac.
1037, we held that the minimum wage law (chapter
174, Laws of 1913, p. 602), for women was constitutional.
We said:

"It is undoubtedly a general rule that private
controversies between individuals sui juris may be
compromised by them by mutual agreement, and that the
courts will not, where no question of fraud intervenes,
relieve from the agreement, even though it be shown
that the one gained rights thereby to which he would
not otherwise have been entitled and that the other
gave up rights to which he was fully entitled; this, on
the principle that compromises are favored by the law,
since they tend to prevent strife and conduce to peace
and to the general welfare of the community. But the
controversy here had an added element not found in
the ordinary controversy between individuals. It was
not wholly of private concern. It was affected with a
public interest. The state, having declared that a
minimum wage of a certain amount is necessary to a
decent maintenance of an employee engaged in the
employment in which the respondent was engaged, has
an interest in seeing that the fixed compensation is
actually paid. The statute making the declaration not
only makes contracts of employment for less than the
minimum wage void, but has sought to secure its
enforcement by making it a penal offense on the part of
the employer to pay less than the minimum wage, and
by giving to the employee a right of action to recover

 584    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

the difference between the wage actually paid and such
minimum wage. The statute was not, therefore, intended
solely for the benefit of the individual wage
earner. It was believed that the welfare of the public
requires that wage earners receive a wage sufficient
for their decent maintenance. The statute being thus
protective of the public as well as of the wage earner,
it must follow that any contract of settlement of a
controversy arising out of a failure to pay the fixed
minimum wage in which the state did not participate is
voidable, if not void. Especially must this be so, as
here, where the contract of settlement is executory, has
been repudiated by one of the parties, the parties can
be placed in statu quo, and the wage earner, by carrying
out the contract, will not receive the wage to which
she is justly entitled."

The Oregon minimum wage law for women - in all
essentials the same as our law - was sustained in
Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743, L.R.A.
1917C 944, Ann. Cas. 1916A 217; and Simpson v.
O'Hara, 70 Ore. 261, 141 Pac. 158. These two cases
were affirmed without an opinion by an equally divided
court in Stettler v. O'Hara, 243 U.S. 629, 37 S. Ct. 475,
Mr. Justice Brandeis taking no part in the consideration
and decision of the cases.

In Bunting v. Oregon, 243 U.S. 426, 37 S. Ct. 435,
Ann. Cas. 1918A 1043, the United States supreme
Court sustained a wage-fixing statute. The statute
limited the hours of labor of any person, whether man
or woman, working in any mill, factory or manufacturing
establishment, to ten hours a day, with a proviso
requiring such employees, if they worked more than
ten hours a day, to accept for the three additional
hours permitted not less than fifty per cent more than
their usual wage.

By act of September 19, 1918 (40 Stat. 960, c. 174),
Congress provided for the fixing of minimum wages for
women and children in the District of Columbia. The

               PARRISH v. WEST COAST HOTEL CO.           585
 Apr. 1936          Opinion Per MILLARD, C.J.

statute was declared unconstitutional on the ground
that it authorizes an unconstitutional interference with
the freedom of contract included within the guaranties
of the due process clause of the fifth amendment of the
constitution of the United States. Adkins v. Children's
Hospital, 261 U.S. 525, 43 S. Ct. 394, 24 A.L.R. 1238.
Mr. Chief Justice Taft, dissenting, said:

"The boundary of the police power beyond which its
exercise becomes an invasion of the guaranty of liberty
under the Fifth and Fourteenth Amendments to the
Constitution is not easy to mark. Our Court has been
laboriously engaged in pricking out a line in successive
cases. We must be careful, it seems to me, to
follow that line as well as we can and not to depart
from it by suggesting a distinction that is formal rather
than real.

"Legislatures in limiting freedom of contract
between employee and employer by a minimum wage
proceed on the assumption that employees, in the class
receiving least pay, are not upon a full level of
equality of choice with their employer and in their
necessitous circumstances are prone to accept pretty much
anything that is offered. They are peculiarly subject
to the overreaching of the harsh and greedy employer.
The evils of the sweating system and of the long hours
and low wages which are characteristic of it are well
known. Now, I agree that it is a disputable question
in the field of political economy how far a statutory
requirement of maximum hours or minimum wages
may be a useful remedy for these evils, and whether
it may not make the case of the oppressed employee
worse than it was before. But it is not the function
of this Court to hold congressional acts invalid simply
because they are passed to carry out economic views
which the Court believes to be unwise or unsound.

"Legislatures which adopt a requirement of maximum
hours or minimum wages may be presumed to
believe that when sweating employers are prevented
from paying unduly low wages by positive law they
will continue their business, abating that part of their

 586    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

profits, which were wrung from the necessities of their
employees, and will concede the better terms required
by the law; and that while in individual cases hardship
may result, the restriction will enure to the benefit of
the general class of employees in whose interest the
law is passed and so to that of the community at large.

"The right of the legislature under the Fifth and
Fourteenth Amendments to limit the hours of employment
on the score of the health of the employee, it
seems to me, has been firmly established. As to that,
one would think, the line had been pricked out so that
it has become a well formulated rule. In Holden v.
Hardy, 169 U.S. 366, it was applied to miners and
rested on the unfavorable environment of employment
in mining and smelting. In Lochner v. New York, 198
U.S. 45, it was held that restricting those employed
in bakeries to ten hours a day was an arbitrary and
invalid interference with the liberty of contract
secured by the Fourteenth Amendment. Then followed a
number of cases beginning with Muller v. Oregon, 208
15. S. 412, sustaining the validity of a limit on maximum
hours of labor for women to which I shall hereafter
allude, and following these cases came Bunting v.
Oregon, 243 U.S. 426. In that case, this Court sustained
a law limiting the hours of labor of any person,
whether man or woman, working in any mill, factory
or manufacturing establishment to ten hours a day
with a proviso as to further hours to which I shall
hereafter advert. The law covered the whole field of
industrial employment and certainly covered the case
of persons employed in bakeries. Yet the opinion in
the Bunting case does not mention the Lochner case.
No one can suggest any constitutional distinction
between employment in a bakery and one in any other
kind of a manufacturing establishment which should
make a limit of hours in the one invalid, and the same
limit in the other permissible. It is impossible for me
to reconcile the Bunting case and the Lochner case
and I have always supposed that the Lochner case
was thus overruled sub silentio. Yet the opinion of
the Court herein in support of its conclusion quotes

               PARRISH v. WEST COAST HOTEL CO.           587
 Apr. 1936          Opinion Per MILLARD, C.J.

from the opinion in the Lochner case as one which has
been sometimes distinguished but never overruled.
Certainly there was no attempt to distinguish it in the
Bunting case.

"However, the opinion herein does not overrule the
Bunting case in express terms, and therefore I assume
that the conclusion in this case rests on the distinction
between a minimum of wages and a maximum of hours
in the limiting of liberty to contract. I regret to be at
variance with the Court as to the substance of this
distinction. In absolute freedom of contract the one term
is as important as the other, for both enter equally
into the consideration given and received, a restriction
as to one is not any greater in essence than the other,
and is of the same kind. One is the multiplier and the
other the multiplicand.

"If it be said that long hours of labor have a more
direct effect upon the health of the employee than the
low wage, there is very respectable authority from
close observers, disclosed in the record and in the
literature on the subject quoted at length in the briefs,
that they are equally harmful in this regard. Congress
took this view and we can not say it was not
warranted in so doing.

"With deference to the very able opinion of the
Court and my brethren who concur in it, it appears to
me to exaggerate the importance of the wage term of
the contract of employment as more inviolate than its
other terms. Its conclusion seems influenced by the
fear that the concession of the power to impose a
minimum wage must carry with it a concession of the
power to fix a maximum wage. This, I submit, is a
non sequitur. A line of distinction like the one under
discussion in this case is, as the opinion elsewhere
admits, a matter of degree and practical experience
and not of pure logic. Certainly the wide difference
between prescribing a minimum wage and a maximum
wage could as a matter of degree and experience be
easily affirmed.

"Moreover, there are decisions by this Court which
have sustained legislative limitations in respect to the

 588    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

wage term in contracts of employment. In McLean v.
Arkansas, 211 U.S. 539, it was held within legislative
power to make it unlawful to estimate the graduated
pay of miners by weight after screening the coal. In
Knoxville Iron Co. v. Harbison, 183 U.S. 13, it was
held that store orders issued for wages must be
redeemable in cash. In Patterson v. Bark Eudora, 190
U.S. 169, a law forbidding the payment of wages in
advance was held valid. A like case is Strathearn S.S.
Co. v. Dillon, 252 U.S. 348. While these did not impose
a minimum on wages, they did take away from the
employee the freedom to agree as to how they should
be fixed, in what medium they should be paid, and when
they should be paid, all features that might affect the
amount or the mode of enjoyment of them. The first
two really rested on the advantage the employer had
in dealing with the employee. The third was deemed
a proper curtailment of a sailor's right of contract in
his own interest because of his proneness to squander
his wages in port before sailing. In Bunting v. Oregon,
supra, employees in a mill, factory or manufacturing
establishment were required if they worked over ten
hours a day to accept for the three additional hours
permitted not less than fifty per cent more than their
usual wage. This was sustained as a mild penalty imposed
on the employer to enforce the limitation as to
hours; but it necessarily curtailed the employee's
freedom to contract to work for the wages he saw fit to
accept during those three hours. I do not feel, therefore,
that either on the basis of reason, experience or
authority, the boundary of the police power should be
drawn to include maximum hours and exclude a minimum
wage.

"Without, however, expressing an opinion that a
minimum wage limitation can be enacted for adult
men, it is enough to say that the case before us
involves only the application of the minimum wage to
women. If I am right in thinking that the legislature
can find as much support in experience for the view
that a sweating wage has as great and as direct a
tendency to bring about an injury to the health and
morals of workers, as for the view that long hours

               PARRISH v. WEST COAST HOTEL CO.           589
 Apr. 1936          Opinion Per MILLARD, C.J.

injure their health, then I respectfully submit that
Muller v. Oregon, 208 U.S. 412, controls this case. The
law which was there sustained forbade the employment
of any female in any mechanical establishment or
factory or laundry for more than ten hours. This
covered a pretty wide field in women's work and it
would not seem that any sound distinction between
that case and this can be built up on the fact that the
law before us applies to all occupations of women with
power in the board to make certain exceptions. Mr.
Justice Brewer, who spoke for the Court in Muller v.
Oregon, based its conclusion on the natural limit to
women's physical strength and the likelihood that long
hours would therefore injure her health, and we have
had since a series of cases which may be said to have
established a rule of decision. Riley v. Massachusetts,
232 U.S. 671; Miller v. Wilson, 236 U.S. 373; Bosley
v. McLaughlin, 236 U.S. 385. The cases covered
restrictions in wide and varying fields of employment
and in the later cases it will be found that the objection
to the particular law was based not on the ground that
it had general application but because it left out some
employments.

"I am not sure from a reading of the opinion
whether the Court thinks the authority of Muller v.
Oregon is shaken by the adoption of the Nineteenth
Amendment. The Nineteenth Amendment did not
change the physical strength or limitations of women
upon which the decision in Muller v. Oregon rests.
The Amendment did give women political power and
makes more certain that legislative provisions for their
protection will be in accord with their interests as they
see them. But I don't think we are warranted in varying
constitutional construction based on physical differences
between men and women, because of the
Amendment.

"But for my inability to agree with some general
observations in the forcible opinion of Mr. Justice
Holmes who follows me, I should be silent and merely
record my concurrence in what he says. It is perhaps
wiser for me, however, in a case of this importance,
separately to give my reasons for dissenting."

 590    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

Mr. Justice Holmes' dissenting opinion reads, in
part, as follows:

"The question in this case is the broad one, Whether
Congress can establish minimum rates of wages for
women in the District of Columbia with due provision
for special circumstances, or whether we must say
that Congress has no power to meddle with the matter
at all. To me, notwithstanding the deference due to
the prevailing judgment of the Court, the power of
Congress seems absolutely free from doubt. The end,
to remove conditions leading to ill health, immorality
and the deterioration of the race, no one would deny to
be within the scope of constitutional legislation. The
means are means that have the approval of Congress,
of many States, and of those governments from which
we have learned our greatest lessons. When so many
intelligent persons, who have studied the matter more
than any of us can, have thought that the means are
effective and are worth the price, it seems to me
impossible to deny that the belief reasonably may be held by
reasonable men. If the law encountered no other objection
than that the means bore no relation to the end or
that they cost too much I do not suppose that anyone
would venture to say that it was bad. I agree, of
course, that a law answering the foregoing requirements
might be invalidated by specific provisions of
the Constitution. For instance it might take private
property without just compensation. But in the present
instance the only objection that can be urged is
found within the vague contours of the Fifth Amendment,
prohibiting the depriving any person of liberty
or property without due process of law. To that I
turn.

"The earlier decisions upon the same words in the
Fourteenth Amendment began within our memory and
went no farther than an unpretentious assertion of the
liberty to follow the ordinary callings. Later that
innocuous generality was expanded into the dogma,
Liberty of Contract. Contract is not specially
mentioned in the text that we have to construe. It is
merely an example of doing what you want to do,
embodied in the word liberty. But pretty much all law

               PARRISH v. WEST COAST HOTEL CO.           591
 Apr. 1936          Opinion Per MILLARD, C.J.

consists in forbidding men to do some things that they
want to do, and contract is no more exempt from law
than other acts. Without enumerating all the restrictive
laws that have been upheld I will mention a few
that seem to me to have interfered with liberty of
contract quite as seriously and directly as the one
before us. Usury laws prohibit contracts by which a man
receives more than so much interest for the money that
he lends. Statutes of frauds restrict many contracts
to certain forms. Some Sunday laws prohibit. practically
all contracts during one-seventh of our whole life.
Insurance rates may be regulated. German Alliance
Insurance Co. v. Lewis, 233 U.S. 389. (I concurred in
that decision without regard to the public interest with
which insurance was said to be clothed. It seemed to
me that the principle was general.) Contracts may be
forced upon the companies. National Union Fire
Insurance Co. v. Wanberg, 260 U.S. 71. Employers of
miners may be required to pay for coal by weight
before screening. McLean v. Arkansas, 211 U.S. 539.
Employers generally may be required to redeem in
cash store orders accepted by their employees in
payment. Knoxville Iron Co. v. Harbison, 183 U.S. 13.
Payment. of sailors in advance may be forbidden.
Patterson v. Bark Eudora, 190 U.S. 169. The size of
a loaf of bread may be established. Schmidinger
Chicago, 226 U.S. 578. The responsibility of employers
to their employees may be profoundly modified.
New York Central R.R. Co. v. White, 243 U.S. 188.
Arizona Employers Liability Cases, 250 U.S. 400.
Finally women's hours of labor may be fixed; Muller
v. Oregon, 208 U.S. 412; Riley v. Massachusetts, 232
U.S. 671, 679; Hawley v. Walker, 232 U.S. 718;
Miller v. Wilson, 236 U.S. 373; Bosley v. McLaughlin,
236 U.S. 385; and the principle was extended to men
with the allowance of a limited overtime to be paid
for 'at the rate of time and one-half of the regular
wage,' in Bunting v. Oregon, 243 U.S. 426.

"I confess that I do not understand the principle on
which the power to fix a minimum for the wages of
women can be denied by those who admit the power
to fix a maximum for their hours of work. I fully
assent to the proposition that here as elsewhere the

 592    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

distinctions of the law are distinctions of degree, but I
perceive no difference in the kind or degree of
interference with liberty, the only matter with which we
have any concern, between the one case and the other.
The bargain is equally affected whichever half you
regulate. Muller v. Oregon, I take it, is as good law
today as it was in 1908. It will need more than the
Nineteenth Amendment to convince me that there are
no differences between men and women, or that
legislation cannot take those differences into account.
should not hesitate to take them into account if
thought it necessary to sustain this act. Quong Wing
v. Kirkendall, 223 U.S. 59, 63. But after Bunting
Oregon, 243 U.S. 426, I had supposed that it was not
necessary, and that Lochner v. New York, 198 U.S. 45,
would be allowed a deserved repose.

"This statute does not compel anybody to pay
anything. It simply forbids employment at rates below
those fixed as the minimum requirement of health and
right living. It is safe to assume that women will not
be employed at even the lowest wages allowed unless
they earn them, or unless the employer's business can
sustain the burden. In short the law in its character
and operation is like hundreds of so-called police laws
that have been upheld."

Respondent insists that the foregoing decision of the
United States supreme court is controlling, and that
the judgment should be affirmed. Let us bear in mind
that Adkins v. Children's Hospital, 261 U.S. 525, 43
S. Ct. 394, 24 A.L.R. 1238, was based upon an act of
Congress passed for the District of Columbia.

In O'Gorman & Young v. Hartford Fire Ins. Co.,
282 U.S. 251, 51 S. Ct. 130, 72 A.L.R. 1163, the
United States supreme court held that the business of
insurance is so far affected with the public interest
that the state may regulate the rates and likewise the
relations of those engaged in business; that a state
statute dealing with a subject clearly within the police
power can not be declared void upon the ground that

               PARRISH v. WEST COAST HOTEL CO.           593
 Apr. 1936          Opinion Per MILLARD, C.J.

the specific method of regulation prescribed by it is
unreasonable, in the absence of any factual foundation
in the record to overcome the presumption of
constitutionality. The court said:

"The statute here questioned deals with a subject
clearly within the scope of the police power. We are
asked to declare it void on the ground that the specific
method of regulation prescribed is unreasonable and
hence deprives. the plaintiff of due process of law. As
underlying questions of fact may condition the
constitutionality of legislation of this character, the
presumption of constitutionality must prevail in the
absence of some factual foundation of record for
overthrowing the statute. It does not appear upon the face
of the statute, or from any facts of which the court
must take judicial notice, that in New Jersey evils did
not exist in the business of fire insurance for which this
statutory provision was an appropriate remedy. The
action of the legislature and of the highest court of the
state indicates that such evils did exist. The record
is barren of any allegation of fact tending to show
unreasonableness."

That the powers not delegated to the United States
by the constitution nor prohibited by it to the states
are reserved to the states, needs no citation of
sustaining authority. The police power of a state was
not given to the Federal government nor prohibited by
the constitution to the people of the respective states,
hence it is one of the reserved powers. It is true that
the employer and the employee are deprived to a certain
extent of their liberty to contract by the minimum
wage law. However, if the deprivation is with due
process, if it corrects a known and stated public evil,
if it promotes the public welfare - that is, if it is a
reasonable exercise of the police power - it is constitutional
and it is a proper exercise of legislative power.

In Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505,
89 A.L.R. 1469, it was held that one may be

 594    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

compelled to pay a greater sum than that which may be
asked because at another end of the industrial scale
is found one who may not be paid what his product is
worth and who may be unable to bargain freely with
those who possess the marketing facilities. The court
said:

"The law-making bodies have in the past endeavored
to promote free competition by laws aimed at trusts
and monopolies. The consequent interference with
private property and freedom of contract has not
availed with the courts to set these enactments aside
as denying due process. Where the public interest was
deemed to require the fixing of minimum prices, that
expedient has been sustained. If the law-making body
within its sphere of government concludes that the
conditions or practices in an industry make unrestricted
competition an inadequate safeguard of the
consumer's interests, produce waste harmful to the
public, threaten ultimately to cut off the supply of a
commodity needed by the public, or portend the
destruction of the industry itself, appropriate statutes
passed in an honest effort to correct the threatened
consequences may not be set aside because the regulation
adopted fixes prices reasonably deemed by the
legislature to be fair to those engaged in the industry
and to the consuming public. And this is especially so
where, as here, the economic maladjustment is one of
price, which threatens harm to the producer at one end
of the series and the consumer at the other. The
Constitution does not secure to anyone liberty to conduct
his business in such fashion as to inflict injury upon
the public at large, or upon any substantial group of
the people. Price control, like any other form of
regulation, is unconstitutional only if arbitrary,
discriminatory, or demonstrably irrelevant to the policy the
legislature is free to adopt, and hence an unnecessary
and unwarranted interference with individual liberty."

The legal duty placed upon the employer by our
minimum wage law is that he must pay women in his
employ in wages a sum found to be necessary for the

               PARRISH v. WEST COAST HOTEL CO.           595
 Apr. 1936          Opinion Per MILLARD, C.J.

maintenance of the health as well as the morals of the
employee. If the wages paid equal or are in excess of
the cost of the maintenance of a normal health
standard, the state's concern in the matter ceases. If
the employer pays less than the amount found to be
the minimum cost of the maintenance of the normal
health standard by virtue of his more secure and
powerful economic position, the transaction savors of
exploitation.

Restraints upon the liberty to contract have been
declared constitutional in many cases, as cited in the
dissenting opinion of Mr. Justice Holmes in Adkins v.
Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 24
A.L.R. 1238. The underlying principle in all such
cases is the state's right, the state's duty, to interfere
in the terms of a contract between private parties
when there is an inequality in bargaining power.

"And therefore I take it to be an established rule,
that a mortgagee can never provide at the time of
making the loan for any event or condition on which
the equity of redemption shall be discharged, and the
conveyance absolute. And there is great reason and
justice in this rule, for necessitous men are not, truly
speaking, free men, but, to answer a present exigency,
will submit to any terms that the crafty may impose
upon them." Vernon v. Bethell, 2 Eden's Chancery
Reports 68.

The mere fact that the parties are of full age does
not necessarily deprive the state of the power to
interfere where the parties do not stand upon an equality,
or where the public health demands that one party to
a contract shall be protected against himself.

"The legislature has also recognized the fact, which
the experience of legislators in many states has
corroborated, that the proprietors of these establishments
and their operatives do not stand upon an equality, and
that their interests are, to a certain extent, conflicting.
The former naturally desire to obtain as much labor

 596    PARRISH v. WEST COAST HOTEL CO.
                Opinion Per MILLARD, C.J.          185 Wash.

as possible from their employes, while the latter are
often induced by the fear of discharge to conform to
regulations which their judgment, fairly exercised,
would pronounce to be detrimental to their health or
strength. In other words, the proprietors lay down
the rules and the laborers are practically constrained
to obey them. In such cases self-interest is often an
unsafe guide, and the legislature may properly interpose
its authority.

"It may not be improper to suggest in this connection
that although the prosecution in this case was
against the employer of labor, who apparently under
the statute is the only one liable, his defence is not so
much that his right to contract has been infringed
upon, but that the act works a peculiar hardship to his
employes, whose right to labor as long as they please
is alleged to be thereby violated. The argument would
certainly come with better grace and greater cogency
from the latter class. But the fact that both parties
are of full age and competent to contract does not
necessarily deprive the state of the power to interfere
where the parties do not stand upon an equality, or
where the public health demands that one party to the
contract shall be protected against himself. 'The state
still retains an interest in his welfare, however
reckless he may be. The whole is no greater than the sum
of all the parts, and when the individual health, safety
and welfare are sacrificed or neglected, the state must
suffer'." Holden v. Hardy, 169 U.S. 366, 18 S. Ct.
383.

We held in Larsen. v. Rice, 100 Wash. 642, 171 Pac.
1037, that the controversy there, which differs in no
important particular from the controversy here, had
an added element not found in the ordinary controversy
by the individual. It was not wholly a private concern.
It was affected with a public interest, the state
having declared the minimum wage of a certain amount
to be necessary. Therefore, the state has an interest
in the way that the fixed compensation is actually paid.

               PARRISH v. WEST COAST HOTEL CO.           597
 Apr. 1936          Opinion Per MILLARD, C.J.

The statute is protective of the public as well as the
wage earner.

[2] If the state legislature and state supreme court
find that the statute is of a public interest, the supreme
court of the United States will accept such judgment
in the absence of facts to support the contrary
conclusion. Unless the supreme court of the United
States can find beyond question that Chapter 174, Laws
of 1913, p. 602, Rem. Rev. Stat., SS 7623 [P.C. SS 3526],
et seq., is a plain, palpable invasion of rights secured
by the fundamental law and has no real or substantial
relation to the public morals or public welfare, then
the law must be sustained. The United States supreme
court has not yet held that a state statute such as the
one in the case at bar is unconstitutional, and until
such time - Adkins v. Children's Hospital, 261 U.S.
525, 43 S. Ct. 394, 24 A.L.R. 1238, is not controlling -
we shall adhere to our holding in the case of Larsen
v. Rice, 100 Wash. 642, 171 Pac. 1037; and Spokane
Hotel Co. v. Younger, 113 Wash. 359, 194 Pac. 595. It
does not appear upon the face of the minimum wage
law or from any facts of which the supreme court of
the United States must take judicial notice that, in the
state of Washington, evils did not exist for which our
minimum wage law was an appropriate remedy. The
action of the state legislature and of this court
indicates that such evils do exist.

The judgment is reversed, and the cause remanded
with instructions to the trial court to enter judgment
in favor of the appellant in an amount equal to the
difference between the amount paid and the amount due
under the minimum wage law.

HOLCOMB, MAIN, BLAKE, and BEALS, JJ., concur.