FRANK, Circuit Judge.
1. Our starting point is this: Without the prohibition of home-work contained in the order of the Administrator the Act, in its application to this industry, will be unenforcible and will become virtually a dead letter. For so it was found as a fact by the Administrator, to whom the Act assigns its enforcement.
2. Notwithstanding that, on this record, petitioners are obliged to confess that the wage order will fail without the home work prohibition, they assert that the Administrator had no power to issue it. Faced with the provisions of § 8(f) — which authorize him to insert in wage orders issued pursuant to § 8 "such terms and conditions as" he "finds necessary to carry out the purposes of such orders, to prevent the circumvention * * *, and to safeguard minimum wage rates established therein" — petitioners say that, although on the facts here the elimination of home work is perhaps within that language, the regulation is so sweeping in its consequences that, had Congress intended to authorize it, the statute would have dealt with that subject specifically as it did with child labor in § 12. But in § 12 Congress dealt with child labor as an independent matter, completely eliminating the employment of minors in the affected industries because of the socially and economically undesirable character of such employment and without regard to the effect on the wage rates and hours of adults. Here the Administrator has prohibited home work not at all on the ground of its inherent undesirability but solely as a means of preventing the circumvention or evasion of an order prescribing adult wage rates. Moreover, doubtless having in mind the provision of § 8(b) that a wage order must "not substantially curtail employment in the industry," the
Addison v. Holly Hill Fruit Products Co., Inc., 64 S.Ct. 1215, 1221, is not contrary to our conclusion. There the Court, interpreting one of the several specific exemptions from the Act, noted that those exemptions were "catalogued with particularity," and said: "Exemptions made in such detail preclude their enlargement by implication."
3. Petitioners, however, maintain that the amendment to the Act, in 1940, which added § 6(a)(5), with its specific reference to homework in Puerto Rico and the Virgin Islands, shows that Congress denied power elsewhere with respect to that subject. That argument cannot stand up; for the legislative history of § 6(a)(5) discloses that it was added to meet the peculiar economic conditions existing in Puerto Rico and the Virgin Islands; it might better be argued, indeed, that Congress found it necessary to amend the Act by adding that subsection precisely in order to limit the exercise of that power theretofore existing, before that amendment, with respect to those and all other areas covered by the Act.
4. Petitioners further contend that the legislative history of § 8(f) demonstrates that Congress did not intend thereby to delegate any authority concerning homework. That history, briefly told, is as follows: The Senate bill, as reported by the Committee in charge, provided that all minimum wage rates and wage differentials should be established by a Board through the issuance of labor standard orders. With respect to such orders the Board was given powers in a provision substantially the same as § 8(f) of the Act except that after the word "conditions" there was a parenthetical clause "(including the restriction or prohibition of such acts or practices)." On the floor, an amendment was adopted, without comment or objection, inserting in the parentheses the words "industrial homework." The original House bill, which was much the same as the Senate bill, included this same provision containing the matter in parentheses. This bill, however, was recommitted. The House Committee then reported a new bill which contained no provision for wage orders but established fixed minimum wages, and included no provision resembling § 8 (f), i. e., for the prevention of circumvention or evasion. This substitute bill (with modifications not relevant here) passed the House. In the Conference Committee a compromise was made between the Senate and House bills which resulted in the present Act, with § 6 containing fixed wage rates subject to acceleration as provided in § 8. Neither the Conference Report nor the subsequent debates discussed any reasons for omitting the matter in the parentheses from the provision which now appears as § 8(f). We see nothing in that ambiguous history disclosing an intention to eliminate from § 8(f) the power to prohibit home work if that prohibition is necessary to prevent circumvention or evasions.
Cudahy Packing Company v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, is not in point. True, there, the Court referred to the fact that authority to delegate the subpoena power, expressly granted in the Senate bill, had been rejected by the Conference Committee; but, as the Court pointed out, the significance of that fact was that the Conference Committee substituted a provision giving the Administrator the subpoena power conferred upon the
5. But petitioners assert that, even granting that § 8(f), taken alone, would include the power to issue the home work order, other provisions of the Act show that Congress could not have intended to authorize so extensive a regulation. The argument runs thus: § 8(f), by its terms, restricts the Administrator's authority to that of annexing "terms and conditions to "orders" issued under § 8; no similar power is given him as to wage rates automatically established under § 6 when no § 8 order is operative; by § 8(e), all orders (except in unusual circumstances) expire in October, 1945. If, then, say petitioners, § 8(f) were construed to authorize the homework prohibition here, that prohibition would expire in 1945. It is unreasonable to believe, argue petitioners, that Congress intended that so extensive a prohibition should be in effect for a period of at most seven years (in this case a little more than a year), that home work could be banned during but a small span and not for the long future. Accordingly, petitioners urge, as § 8(f) applies only to orders, it must, for the sake of consistency, be construed not to include so extensive a power.
That argument proves too much. It cannot stop with eliminating from § 8(f) the authority to forbid home work. Pushed to its logical conclusion, this contention says that any regulation under that subsection lacks validity unless the statute expressly authorizes a similar regulation concerning all wage rates; petitioners would thus have us read § 8(f) out of the Act. As, of course, petitioners do not venture to go that far, their "consistency" contention comes to this: § 8(f) must be narrowly interpreted so as not to confer authority of any importance; in other words, the Administrator may make a regulation to prevent minor evasions of a wage order, but he is powerless to prevent major evasions which, as here, will gut the order. Such an interpretation — which flies in the face of the wording of § 8(f), rendering it virtually meaningless, making practically useless many a wage order, thus all but destroying § 8 — ascribes to Congress an unreasonable intention.
Were it necessary for us here to pass on the matter, we would be obliged to consider whether consistency and reasonableness require that § 8(f) be interpreted so as to apply to all wage rates or whether, quite aside from § 8(f), the Administrator has the implied power to issue regulations necessary to protect all wage rates from evasions.
6. We cannot agree with the suggestion that Congress, if it had intended the Administrator to regulate home work, would have required him first to consult the industry committees or to hold hearings. For §§ 7(c) and 13 empower him to take action having more extensive consequences without such consultation or hearings.
We also consider untenable the suggestion that the home work regulation is invalid because the statute did not expressly require a hearing as a condition precedent to its issuance. Aside from the fact that here such a hearing was in fact held, the short answer is that the Constitution does not require a hearing before the promulgation of such a regulation. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641; Phillips v. Commissioner, 283 U.S. 589, 596, 597, 51 S.Ct. 608, 75 L.Ed. 1289; Bi-Metallic Investment Co. v. State Board, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372.
7. We reject the argument that stricter enforcement or some other measure would meet the problem without the need for prohibiting home work, for the Administrator has made express findings to the contrary.
8. Nor is there, we think, anything to the point that the Administrator has made an unreasonable discriminatory classification by his exemptions from the prohibition. The Fifth Amendment contains no "equal protection" clause.
9. Equally unsound is the argument that the prohibition of home work violates due process. It is perhaps sufficient to note that, to support this argument, petitioners rely heavily on the remarks of Field, J., concerning liberty of contract in his concurring opinion in Butchers Union Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585. Surely the extreme views there expressed are no longer authoritative.
10. Finally we come to the contention that, if the statute confers the asserted authority on the Administrator, then it unconstitutionally delegates legislative power. The question raised by that contention is not new. More than two thousand years ago, a profound student of government, from whom we derive the concept of a "government of laws, and not of men."
Without mentioning that author, our Supreme Court has often echoed his words. In 1904, it said,
True, in the case last quoted and in another decided about the same time,
Petitioners scarcely try to distinguish those cases. They fall back on a rigid conception of the "separation of powers" doctrine. Such an inflexible conception finds no justification in English or American history,
As, in spite of Supreme Court decisions which should put the matter at rest, we still frequently hear arguments which assume an inherent infirmity in delegation of rule-making to administrative officers, it seems worthwhile to analyze the problem somewhat more in detail.
In the history of this country, subordinate legislative powers were delegated at an early day, both by our state legislatures and Congress.
Indeed, those who today criticize the transfer of "subsidiary legislation" to administrative officers forget that, inspired by somewhat similar motives, there has been and still is much criticism of the power exercised by judges in construing statutes, that Bentham, Livingston, and their disciples (some even in our time
There are those who, while they grudgingly concede the necessity of delegation of subordinate legislative powers to administrative officers, are disturbed because currently it is accompanied by what they consider an unwise breadth of authority in fact-finding given to such officers when deciding particular cases arising under administrative regulations.
Their selection, however, is not a judicial function. And it is surely not our function in this case to thwart the legislative purpose (whether we like it or not) by so interpreting this statute as to leave it, as to the industry here concerned, a mere bit of worthless printing.
L. HAND, Circuit Judge (concurring).
The only question which, as I view it, requires discussion is the meaning of § 8 (f); for the plaintiffs' objections, based upon the Fifth Amendment, and — as applied to this situation — upon a supposed unlawful delegation of power, have long since been answered in the books. I should have not had any trouble as to § 8(f), had it applied to all wages — those fixed by statute as well as those fixed by "advisory committees" — indeed, I am not sure that the Administrator would have needed any express grant of power to promulgate the regulation which he did, had the Act been silent. His duty might have included preventing evasions and safe-guarding the rates in any event. But, since the power is in terms limited to what I may call "committee," as opposed to "statutory," wages, I have had some doubts whether we should construe it to comprise so drastic an exercise as is here in question. Indeed, unless it can be read to cover "statutory" wages, I do not believe that it would justify the proscription of a substantial part of the entire industry; for in that event the purpose we should have to ascribe to Congress would be nothing short of absurd. The regulation was promulgated in August, 1943, and at most could cover less than two years, except for the possibility — remote in this industry — that an "advisory committee" might thereafter reduce wages below 40 cents under § 8(e). And yet the regulation will disorganize and make over the industry, break up much family economy, and produce conditions which cannot possibly adjust themselves until after it has itself ceased to exist, when by hypothesis all will be free to go back to homework. Not only does every consideration which can support so heroic a remedy apply equally to "statutory" wages, but their exclusion so mutilates the only purpose that could have actuated the regulation, as to leave no intelligible purpose at all.
Even so, I should have had the utmost
I have not mentioned the parenthesis, which was interpolated into what has now become § 8(f) while it was in the Senate, and which was deleted when it was restored. This grew up through step by step additions, among which "homework" was one. I think that we should misread it — built up in this way as it was — if we supposed that the process indicated more than a desire to make sure that the specified details should be included. Indeed, even though the whole parenthesis had been struck out while the original plan remained, I should have put it down to the belief that it was unwise to specify so much, lest the specification be taken as exhaustive. But that did not happen; the section, which had apparently died with the Senate plan, was lifted out of that setting, and was put into the compromise bill as it had stood originally. It would be indeed a far cry to infer from that that all the items which by accretion had made their way into the parenthesis were in this way excised from the Administrator's powers. Indeed, if so — as he argues — he could not even regulate labels, for, although § 11(c) gives him power over records, it does not give him power over these.
Finally, I cannot see that the Puerto Rico and Virgin Island amendment to § 6 stands in the way. When the Act was first passed it was not in it; it remained for two years just as it was. It would be unsafe to interpret the original meaning by an amendment made two years later; certainly, when it was a specific and detailed provision, applicable to islands where the conditions were quite different from those in the continental United States.
SWAN, Circuit Judge (dissenting).
These are petitions under section 10 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 210, by home workers and employers of home workers in the embroideries industry to review a wage order of the Administrator which establishes a minimum wage rate of 40 cents an hour and prohibits, with very limited exceptions, home work. No one questions the validity of the minimum wage portion of the order. My brothers hold valid the prohibition of home work. I shall attempt to state briefly the reasons why I cannot agree with them.
Section 5 of the Act provides for the appointment by the Administrator of industry committees, each such committee being composed of representatives of the public, of employees and of employers in the industry. Section 8 prescribes the duties of the committee and of the Administrator after the committee has filed a report containing its recommendations. Sub-section (b) requires that after investigating conditions in the industry the committee
The committee which recommended the 40 cent minimum wage for the embroideries industry made no recommendation as to the abolition or restriction of home work. This issue was never presented to the committee. Had the committee known that the wage it recommended was to be accompanied by such a restriction, which, as Judge Hand well says, "will disorganize and make over the industry, break up much family economy, and produce conditions which cannot possibly adjust themselves" for a considerable period of time, the committee might well have withheld its recommendation of a minimum wage rate lest employment in the industry be substantially curtailed. The Administrator, it is true, has made a finding that employment will not be substantially curtailed. But this finding adds no support to the validity of the order in my opinion. The issue of curtailment of employment by reason of the prohibition of home work was interjected without statutory authority into the hearing held under § 8(d). That hearing is to determine whether the committee's recommendations are made in accordance with law, are supported by the evidence, and will carry out the purposes of the section, "taking into consideration the same factors as are required to be considered by the industry committee." As already noted the prohibition of home work was not presented to the committee and consequently was not a factor considered or required to be considered by it. Bearing in mind that under section 8(d) the Administrator must either adopt or reject the recommendations of an industry committee and is given no discretion to modify them, and that such committee is repeatedly admonished to determine that its recommendations will not substantially curtail employment, it appears to me unreasonable to suppose that Congress intended the incidental powers conferred by section 8(f) to authorize the Administrator in his uncontrolled discretion to take action so radical as to alter the whole structure of an industry and cause one-third of the employees engaged therein to become factory workers or to give up their employment. In my opinion "such terms and conditions" as the Administrator finds necessary "to carry out the purposes of the order or prevent evasion thereof" mean terms and conditions which are truly incidental to administration, that is, requirements as to keeping records, filing reports, etc. And this finds confirmation, I think, in the fact that the act as finally passed omitted the parenthetical definition which appeared at one stage of the legislative history of section 8(f), namely, "such terms and conditions (including the restriction or prohibition of industrial home work or of such other acts or practices) as the Board finds necessary to carry out the purposes of such orders * * *." In my opinion so much of the order as prohibits home work should be set aside.
And in his remarks elsewhere on "equity," he said that "all law is couched in general terms, but there are some cases upon which it is impossible to pronounce correctly in general terms. Accordingly, where a general statement is necessary, but such a statement cannot be correct, the law embraces the majority of cases, although it does not ignore the element of error. Nor is it the less correct on this account; for the error lies not in the law, nor in the legislature, but in the nature of the case. For it is plainly impossible to pronounce with complete accuracy upon such a subject matter as human action. Wherever then the terms of the law are general, but the particular case is an exception to the general law, it is right, where the legislator's rule is inadequate or erroneous in virtue of its generality, to rectify the defect which the legislator himself, if he were present, and had he known it, would have rectified in legislating * * * This is in fact the nature of the equitable; it is rectification of law where it fails through generality * * * For where the thing to be measured is indefinite the rule must be indefinite * * *" Nicomachean Ethics, Bk. V, Ch. 10, 1137b, 13-31. "The equitable seems to be just and equity is a kind of justice, but goes beyond the written law. This margin is left by legislators, sometimes voluntarily, sometimes involuntary; involuntarily when the point escapes notice, voluntarily when they are unable to lay down a definition, and yet it is necessary to lay down an absolute rule; also in cases where inexperience makes it hard to define * * *; for life would not be long enough for a person to enumerate the cases." Rhetoric, Bk. I, Ch. 13.
By a "government of men" Aristotle apparently meant a government in which a specific judgment or decree affecting a specific person is rendered by the legislator or legislative body. Curiously, some of our Congressional "private bill" legislation would come within that criticized category.
Aristotle's point of view reappeared in a New York Times' editorial of December 15, 1943: "It is the proper function of Congress to frame laws and general policies, to delegate powers where-ever detailed control is necessary, and to see that laws are properly administered. But it is not the function of Congress itself to administer the law. It is not its business to meddle in specific decisions. Once it does so * * * it will find itself overwhelmed with administrative details that it is not remotely organized to attend to * * * Such detailed meddling can only * * * lead towards administrative chaos."
Incorrect also is the notion that Coke, in the 17th century, espoused the "separation" doctrine. His attacks on the High Commission, an ecclesiastical court, and on other governmental agencies, were based on his contention that they were exercising powers not conferred on them by Parliament, never that Parliament could not do so or that there was anything inherently bad in a grant of combined judicial and executive or legislative functions. He sat in both the Privy Council and the Star Chamber which each exercised combined judicial and administrative powers of an extensive character. Not only did he not protest against that fusion of powers in those bodies but late in life described the Star Chamber as "the most honorable court (our Parliament excepted) that exists in the Christian world." 4 Institutes 65.
In this country, the Articles of Confederation made no provision for separating the three powers. And the discussions of Madison and Hamilton in The Federalist (Nos. 38, 47, 48 and 66) show not only that the constitutions of most American States after Independence by no means adhered rigidly to the tripartite separation but also that the federal Constitution was not intended to do so. See also, Nettels, The Roots of American Civilization (1938) 666; Merriam, American Political Theories (1903) Chapters II and III.
Jefferson came to have a poor opinion of Montesquieu. And in 1816 he said of the Virginia country courts, which performed such nonjudicial functions as supervising schools, levying taxes and appointing sheriffs, "I acknowledge the value of this institution; it is in truth our principal executive and judiciary." 5 Works (Washington ed., 1853) 539; 7, ibid, 18.
The Supreme Court, as early as 1825, held that Congress may delegate to the Supreme Court a power which the Court regarded as "legislative", i. e., the power to make or alter rules of procedure. Wayman v. Southard, 10 Wheat. 1, 6 L. Ed. 253.
One recalls Moliere's M. Jourdain who learned with pleasure, that, like literary men, he had been talking prose all his life.
As Patterson says (loc. cit. 4-5), "one cannot assume * * * that the same code of procedure which works well in workmen's compensation will do for the regulation of insurance enterprises. As well apply the violent methods of military law to the taking of a census!"
Dean Landis in 1938 referred to "the insistence of Mr. Justice Brandeis that differences in treatment should be accorded to findings of fact by different administrative officials, because of differences in the facts and in the qualities of the administrative to be expert in finding the facts." He also said: "If the extent of judicial review is being shaped, as I believe, by reference to an appreciation of the qualities of expertness for decision that the administrative may possess, important consequences follow. The constitution of the administrative and the procedure employed by it become of great importance. That these factors already in part mold the scope of judicial review is apparent from the decisions. Different agencies receive different treatment from the courts. A reputation for fairness and thoroughness that attaches to a particular agency seeps through to the judges and affects them in their treatment of its decisions." Landis, The Administrative Process (1938) 143-144, 153.
Previously, Henderson, in The Federal Trade Commission (1924) 337, had said: "The expert judgment of the Interstate Commerce Commissions is, as I have said, respected by the courts, and the only reason I can think of for not giving the same treatment to the findings of the Federal Trade Commission is that it is difficult to tell from the great majority of the findings that the Commission has ever exercised an expert judgment, since the reasons for the decision are never given. Despite the dicta of the Supreme Court, I venture the opinion that the matter is not yet foreclosed, and that if it should appear in some future case that the Commission has based its decision on an expert judgment of a practical nature, the court is still in a position to state that it will not substitute its own judgment for the judgment of the Commission. So long as the Commission adheres to its present formal findings of fact, however, there can be little hope of such an outcome."
Recently the Supreme Court has shown signs of employing such an empirical, selective, test in its dealings with the several administrative agencies. Thus in Dobson v. Commissioner, 320 U.S. 489, 498, 64 S.Ct. 239, 245, when announcing the extensive authority of the Tax Court in matters of "fact," the Court said: "It has established a tradition of freedom from bias and pressures." See, on the other hand, the increased strictness of the Court's attitude towards another agency in Eastern-Central Ass'n v. United States, 321 U.S. 194, 64 S.Ct. 499.
In 1941, in hearings on S.674, S.675 and S.918, Senator O'Mahoney said to a witness: "Now the question as to whether or not there shall be a complete separation of prosecution and adjudication in all of these matters, and your position that they cannot possibly be joined in the same person without great detriment, prompts me to suggest, because of your statement a moment ago, that in the ordinary criminal procedure, day after day, prosecuting attorneys are confronted with the problem of determining whether or not they shall proceed with a particular case, and whether or not a particular type of settlement will be made. Prosecuting attorneys, U. S. attorneys, attorneys in the various districts, county attorneys, State attorneys and the like are constantly making these decisions which come within the border line * * *".
"In the Illinois Crime Survey of some dozen years ago, it was found that in a given year 13,117 felony prosecutions were begun in Chicago. Only 498 — less than one in twenty-six — ever came to trial." Puttkammer, Criminal Law Enforcement, University of Chicago Law School, Reprint and Pamphlet Series (1941) No. 1, p. 6.
Many learned commentators have said the same; see, e. g., the citations in Commissioner v. Beck's Estate, 2 Cir., 129 F.2d 243, 245, note 3; Waite, Judge-Made Law And The Education of Lawyers, 30 Am. Bar. Ass'n J. (1944) 253.
There has, however, been greater reluctance to admit that, similarly, interpretation of statutes often requires such legislation. Yet it is difficult to justify a differentiation. Several students of continental legal systems have recognized that statutory construction often necessitates judge-made law. See Kiss, Equity and Law, in The Science of Legal Method (transl. 1917) 146; Lambert, Codified and Case Law, in the same volume, 251; Wurzel, Juridical Thinking (in the same volume), 286; Alvarez, Methods For Codes (in the same volume) 429. As Mr. Justice Jackson recently noted, the Swiss Code candidly calls for such law-making by the judges; State Tax Commission v. Aldrich, 316 U.S. 174, 202, note 23, 62 S.Ct. 1008, 86 L.Ed. 1358, 139 A.L.R. 1436.
Paul, Federal Estate and Gift Taxation (1942) I, 43-44, 62, 86-87, has observed that narrow or liberal construction of statutes often involves judicial legislation; cf. Jackson, The Struggle For Judicial Supremacy (1941) 58.
Seagle suggests that legislation actually leads to an increase of legislative activity by the courts. Seagle, The Quest For Law (1941) 298; cf. 196. See also Calhoun, Introduction to Greek Legal Science (1944) Ch. IV.
See Wigmore, The Judicial Function, in The Science of Legal Method (1917) xxvi; Allen, Law in The Making (1927) 283, 286-287; Radin, The Law and Mr. Smith (1938) Chapter XIV.
John Foster Dulles, in the same hearings, said that when he had publicly stated that the administration of any law depended in the last analysis upon the character of the men charged with the duty of administering it, he had been severely criticized "on the ground that that demonstrated I was a Nazi because I believed in a government by men and not a government of laws, and the American system was a government of laws and not of men."
Cf. Lindsay Rogers, The Independent Regulatory Commissions, 52 Pol. Sc. Q. (1937) 1, 9-10.