20

(208 U. S. 412)

CURT MULLER, Plff. in Err.,

V.

STATE OF OREGON. Constitutional law-regulating hours of women employees.

tified in dissenting from the judgment of question, but I leave it untouched, as lithe court, but the result is to give to copy-cense is not relied upon as a ground for the right less scope than its rational signifi- judgment of the court. cance and the ground on which it is granted seem to me to demand. Therefore I desire to add a few words to what he has said. The notion of property starts, I suppose, from confirmed possession of a tangible object, and consists in the right to exclude others from interference with the more or less free doing with it as one wills. But in copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but is in vacuo, so to speak. It restrains the spontaneity of men where, but for it, there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right. It may Argued January 15, 1908. Decided Febrube infringed a thousand miles from the owner and without his ever becoming aware of the wrong. It is a right which could not be recognized or endured for more than a limited time and therefore, I may remark, in passing, it is one which hardly can be conceived except as a product of statute, as the authorities now agree.

Rights under the 14th Amendment to the Federal Constitution are not infringed by the limitation of the hours of labor of women employed in laundries to ten hours daily which is made by Oregon Laws 1903, P. 148, although like legislation affecting male employees may be invalid. *

[No. 107.]

ary 24, 1908.

IN ERROR to the Supreme Court of the

the Circuit Court for the County of Multnomah in that state for requiring a woman employed in a laundry to work more than ten hours daily. Affirmed.

See same case below, 48 Or. 252, 85 Pac.

855.

The facts are stated in the opinion. Messrs. William D. Fenton and Henry H. Gilfry for plaintiff in error.

Messrs. H. B. Adams, Louis Brandeis, John Manning, A. M. Crawford, and B. E. Haney for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

On February 19, 1903, the legislature of the state of Oregon passed an act (Session Laws 1903, p. 148) the first section of which is in these words:

The ground of this extraordinary right is that the person to whom it is given has invented some new collocation of visible or audible points, of lines, colors, sounds, or words. The restraint is directed against reproducing this collocation, although, but for the invention and the statute, anyone would be free to combine the contents of the dictionary, the elements of the spectrum, or the notes of the gamut in any way that he had the wit to devise. The restriction is confined to the specific form, to the collocation devised, of course, but one would expect that, if it was to be protected at all, that collocation would be protected according to what was its essence. One would "Sec. 1. That no female (shall) be emexpect the protection to be coextensive not ployed in any mechanical establishment, or only with the invention, which, though free factory, or laundry in this state more than to all, only one had the ability to achieve, ten hours during any one day. The hours but with the possibility of reproducing the of work may be so arranged as to permit result which gives to the invention its the employment of females at any time so meaning and worth. A*musical composi- that they shall not work more than ten tion is a rational collocation of sounds hours during the twenty-four hours of any apart from concepts, reduced to a tangible one day." expression from which the collocation can Sec. 3 made a violation of the provisions be reproduced either with or without con- of the prior sections a misdemeanor subject tinuous human intervention. On princi- to a fine of not less than $10 nor more than ple anything that mechanically reproduces $25. On September 18, 1905, an informathat collocation of sounds ought to be held tion was filed in the circuit court of the a copy, or, if the statute is too narrow, state for the county of Multnomah, charought to be made so by a further act, ex-ging that the defendant "on the 4th day of cept so far as some extraneous considera- September, A. D. 1905, in the county of tion of policy may oppose. What license Multnomah and state of Oregon, then and may be implied from a sale of the copy- there being the owner of a laundry, known righted article is a different and harder as the Grand Laundry, in the city of PortEd. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 157.

land, and the employer of females therein, | whatever source, in the same manner as did then and there unlawfully permit and suffer one Joe Haselbock, he, the said Joe Haselbock, then and there being an overseer, superintendent, and agent of said Curt Muller, in the said Grand Laundry, to require a female, to wit, one Mrs. E. Gotcher, to work more than ten hours in said laundry on said 4th day of September, A. D. 1905, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

her husband can with property belonging to him, but that she may make contracts and incur liabilities, and the same may be enforced against her, the same as if she were a feme sole. There is now no residuum of civil disability resting upon her which is not recognized as existing against the husband. The current runs steadily and strongly in the direction of the emanci pation of the wife, and the policy, as disclosed by all recent legislation upon the subject in this state, is to place her upon the same footing as if she were a feme sole, not only with respect to her separate property, but as it affects her right to make binding contracts; and the most natural corollary to the situation is that the remeThe single question is the constitution- dies for the enforcement of liabilities inality of the statute under which the defend-curred are made coextensive and coequal ant was convicted, so far as it affects the with such enlarged conditions." work of a female in a laundry. That it does not conflict with any provisions of the state Constitution is settled by the decision of the supreme court of the state. The contentions of the defendant, now plaintiff in error, are thus stated in his brief:

A trial resulted in a verdict against the defendant, who was sentenced to pay a fine of $10. The supreme court of the state affirmed the conviction (48 Or. 252, 85 Pac. 855), whereupon the case was brought here on writ of error.

"(1) Because the statute attempts to prevent persons sui juris from making their | own contracts, and thus violates the provisions of the 14th Amendment, as follows: "No state shall make or enforce any law which shall 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.'

*"(2) Because the statute does not apply equally to all persons similarly situated, and is class legislation.

"(3) The statute is not a valid exercise of the police power. The kinds of work prescribed are not unlawful, nor are they declared to be immoral or dangerous to the public health; nor can such a law be sustained on the ground that it is designed to protect women on account of their sex. There is no necessary or reasonable connection between the limitation prescribed by the act and the public health, safety, or welfare."

It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men. As said by Chief Justice Wolverton, in First Nat. Bank v. Leonard, 36 Or. 390, 396, 59 Pac. 873, 874, after a review of the various statutes of the state upon the subject:

"We may therefore say with perfect confidence that, with these three sections upon the statute book, the wife can deal, not only with her separate property, acquired from

It thus appears that, putting to one side the elective franchise, in the matter of personal and contractual rights they stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. We held in Lochner v. New York,, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, that a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a week or ten hours in a day was not as to men a legitimate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor.

In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation, as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters, an epitome of which is found in the margin.†

†The following legislation of the states imposes restriction in some form or another upon the hours of labor that may be required of women: Massachusetts: 1874, Rev. Laws 1902, chap. 106, § 24; Rhode Island: 1885, Acts and Resolves 1902, chap. 994, p. 73; Louisiana: 1886, Rev. Laws 1904, vol. 1, § 4, p. 989; Connecticut: 1887,

*420

326

28 SUPREME COURT REPORTER.

*While there have been but few decisions bearing directly upon the question, the following sustain the constitutionality of such legislation: Com. v. Hamilton Mfg. Co. 120 Mass. 383; Wenham v. State, 65 Neb. 394, 400, 406, 58 L.R.A. 825, 91 N. W. 421; State v. Buchanan, 29 Wash. 602, 59 L.R.A. 342, 92 Am. St. Rep. 930, 70 Pac. 52; Com. v. Beatty, 15 Pa. Super. Ct. 5, 17; against them is the case of Ritchie v. People, 155 Ill. 98, 29 L.R.A. 79, 46 Am. St. Rep. 315, 40 N. E. 454.

OCT. TERM,

It is undoubtedly true, as more than once declared by this court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the 14th Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a state may, without conflicting with the provisions of the 14th Amendment, restrict in many respects the individual's power of contract. Without stopping to discuss at length the extent to which a state may act in this respect, we refer to the following cases in which the question has been considered: Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Lochner v. New York, supra.

The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence there- That woman's physical structure and the of, justify special legislation restricting or performance of maternal functions place her qualifying the conditions under which she at a disadvantage in the struggle for subshould be permitted to toil. Constitutional sistence is obvious. This is especially true questions, it is true, are not settled by even when the burdens of motherhood are upon a consensus of present public opinion, for it her. Even when they are not, by abundant is the peculiar value of a written constitu- testimony of the medical fraternity continution that it places in unchanging form limance for a long time on her feet at work, reitations upon legislative action, and thus peating this from day to day, tends to injurigives a permanence and stability to popular government which otherwise would be lack-ous effects upon the body, and, as healthy ing. At the same time, when a question of mothers are essential to vigorous offspring, fact is debated and debatable, and the ex- the physical well-being of woman becomes an tent to which a special constitutional lim- object of public interest and care in order to itation goes is affected by the truth in respect to that fact, a widespread and longcontinued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.

preserve the strength and vigor of the race.

Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength,

Gen. Stat. Revision 1902, § 4691; Maine: Then follow extracts from over ninety re1887, Rev. Stat. 1903, chap. 40, § 48; New ports of committees, bureaus of statistics, Hampshire: 1887, Laws 1907, chap. 94, p. commissioners of hygiene, inspectors of fac 95; Maryland: 1888, Pub. Gen. Laws 1903, tories, both in this country and in Europe, art. 100, § 1; Virginia: 1890, Code 1904, to the effect that long hours of labor are title 51A, chap. 178A, § 36576; Pennsylva- dangerous for women, primarily because of nia: 1897, Laws 1905, No. 226, p. 352; New their special physical organization. The York: 1899, Laws 1907, chap. 507, § 77, matter is discussed in these reports in difsubdiv. 3, p. 1078; Nebraska: 1899, Comp. ferent aspects, but all agree as to the danStat. 1905, § 7955, p. 1986; Washington:ger. It would, of course, take too much Stat. 1901, chap. 68, § 1, p. 118; Colorado: space to give these reports in detail. FolActs 1903, chap. 138, § 3, p. 310; New Jer-lowing them are extracts from similar resey: 1892, Gen. Stat. 1895, p. 2350, §§ 66, 67; Oklahoma: 1890, Rev. Stat. 1903, chap. 25, art. 5S, § 729; North Dakota: 1877, Rev. Code 1905, § 9440; South Dakota: 1877, Rev. Code (Penal Code § 764), p. 1185; Wisconsin: 1867, Code 1898, § 1728; South Carolina: Acts 1907, No. 233.

In foreign legislation Mr. Brandeis calls attention to these statutes: Great Britain, 1844: Law 1901, 1 Edw. VII. chap. 22. France, 1848: Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus, 1848: Federal Law 1877, art. 2, § 1. Austria, 1855; Acts 1897, art. 96a, §§ 1-3. Holland, 1889; art. 5, § 1. Italy, June 19, 1902, art. 7. Germany, Laws 1891.

ports discussing the general benefits of short hours from an economic aspect of the question. In many of these reports individual instances are given tending to support the general conclusion. Perhaps the general scope and character of all these reports may be summed up in what an inspector for Hanover says: "The reasons for the reduction of the working day to ten hours (a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home-are all so important and so far reaching that the need for such reduction need hardly be discussed."

422

health, but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.

and this control in various forms, with, a proper discharge of her maternal funcdiminishing intensity, has continued to the tions-having in view not merely her own present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an We have not referred in this discussion independent position in life, she is not upon to the denial of the elective franchise in an equality. Differentiated by these mat- the state of Oregon, for while that may disters from the other sex, she is properly close a lack of political equality in all placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and

things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform.

For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution, so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed.

28

Courts jurisdiction of Federal circuit court-diverse citizenship.

1. The corporate defendant and the complaining stockholder will not be aligned on the same side of the controversy for the purpose of determining the jurisdiction of a Federal circuit court, invoked on the ground of diverse citizenship, because it may be for the financial interests of the corporation that the suit shall succeed, where the corporation unites with the other defend

ant in resisting the claim of illegality and fraud, and both are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action.

wrongful acts were committed by the defendants does not appear by any allegation in the complaint. The defendant James J. Hill was a director and the president of the other defendant, the Great Northern Railway Company, and that railroad and its board of directors were under his absolute control.

While holding these offices and exercising this control, in 1900 and 1901, Hill purchased, or caused to be purchased for his use, stock of the Chicago, Burlington, & Quincy Railroad Company of the par value of $25,000,000, at an average price of $150 a share. This purchase was made with the design of selling the stock at a higher price to the company of which he was a director and president. Subsequently, in 1901, while still holding his offices in the Great Northern Railway and exercis

Courts jurisdiction of Federal circuiting the same control over that corporation,

-

court-stockholder's suit.

2. The failure of a complaining stockholder, in an action by him against the corporation, to bring his case within the terms of equity rule 94, while justifying the dismissal of the bill for want of equity, does not defeat the jurisdiction of the Federal circuit court over the suit, if the requisite diversity of citizenship exists, the jurisdictional amount is involved, and defendant is properly served with process within the district.

[No. 485.]

he sold to it a large amount of the stock of the Chicago, Burlington, & Quincy Railroad Company owned by him, and made an unlawful profit of $10,000,000 on the transaction. Before bringing this suit the plaintiff demanded of the Great Northern Railway Company that it bring suit against Hill to compel him to account for and pay over to it the wrongful profit which he had obtained. The railroad refused to comply with this demand, and thereupon the plaintiff brought this suit as a stockholder, in his own behalf, and in the behalf and for the benefit of other stockholders similarly sit

Submitted January 20, 1908. Decided Feb- uated. The prayer was that Hill should

A

ruary 24, 1908.

PPEAL from the Circuit Court of the United States for the Southern District of New York to review a judgment dismissing a bill in a stockholder's suit. Affirmed.

See same case below on demurrer, 153 the defendants. In that court the plaintiff Fed. 408.

was ordered to "replead the complaint herein according to the forms and practice prevailing in equity." This was done on No

The facts are stated in the opinion. Messrs. Abram J. Rose, George H. Yeaman, Alfred C. Petté, and Stephen M.vember 9, 1906. The new complaint set Yeaman for appellant.

Mr. Julius F. Workum for appellees.

*Mr. Justice Moody delivered the opinion of the court:

forth the facts in greater detail and with some variations, but its substance and effect was similar to that of the first complaint. The complaint did not conform to the requirements of the 94th equity rule, relatThe appellant, a citizen of New York, ing to suits of this nature, in that it failed brought this suit in equity in the supreme to allege that the plaintiff was a shareholdcourt of New York against the defendant | er at the time of the transactions of railroad, a citizen of Minnesota, and the which he complains, or that his shares other defendant, its president, also a citi- had devolved on him since by operazen of Minnesota. The complaint set forth tion of law, or that the suit was not colluin substance the following facts upon which sive, or the particulars of his efforts to prothe right to relief was claimed: The plain- cure action by the corporation defendant. tiff was a stockholder in the defendant rail- The defendants then demurred separately road at the time of the beginning of the to the bill, and the defendant Hill subsuit in 1906. Whether or not he was a joined to his demurrer an affidavit denying stockholder at the time when the alleged every allegation in it tending to show wrong