U.S. Supreme Court
MULLER v. STATE OF OREGON, 208 U.S. 412 (1908)
208 U.S. 412
CURT MULLER, Plff. in Err.,
STATE OF OREGON.
Argued January 15, 1908.
Decided February 24, 1908.
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U.S. 412, 413]
Messrs. William D. Fenton and Henry H. Gilfry for
plaintiff in error.
[208 U.S. 412, 415]
Messrs. H. B. Adams, Louis
Brandeis, John Manning, A. M. Crawford, and B. E. Haney for defendant in error.
[208 U.S. 412, 416]
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:
'Sec. 1. That no female (shall) be employed in any mechanical establishment,
or factory, or laundry in this state more than ten hours during any one day. The
hours of work may be so arranged as to permit the employment of females
[208 U.S. 412, 417] at any time so that they shall not work more than ten
hours during the twenty-four hours of any one day.'
Sec. 3 made a violation of the provisions of the prior sections a misdemeanor
subject to a fine of not less than $10 nor more than $25. On September 18, 1905,
an information was filed in the circuit court of the state for the county of
Multnomah, charging that the defendant 'on the 4th day of September, A. D. 1905,
in the county of Multnomah and state of Oregon, then and there being the owner
of a laundry, known as the Grand Laundry, in the city of Portland, and the
employer of females therein, 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
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.
The single question is the constitutionality of the statute under which the
defendant was convicted, so far as it affects the 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:
'(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
'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.'
[208 U.S. 412, 418] '(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 whatever source, in the same manner as 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 emancipation 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 remedies for the
enforcement of liabilities incurred are made coextensive and coequal with such
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
[208 U.S. 412, 419] 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. 1
[208 U.S. 412, 420] 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.
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 thereof, justify special legislation
restricting or qualifying the conditions under which she should be permitted to
toil. Constitutional questions, it is true, are not settled by even a consensus
of present public opinion, for it is the peculiar value of a written
constitution that it places in unchanging form limitations upon legislative
action, and thus gives a permanence and stability to popular government which
otherwise would be lacking. At the same time, when a question of fact is debated
and debatable, and the extent to [208 U.S. 412, 421]
which a special constitutional limitation 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
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.
That woman's physical structure and the performance of maternal functions
place her at a disadvantage in the struggle for subsistence is obvious. This is
especially true when the burdens of motherhood are upon her. Even when they are
not, by abundant testimony of the medical fraternity continuance for a long time
on her feet at work, repeating this from day to day, tends to injurious effects
upon the body, and, as healthy mothers are essential to vigorous offspring, the
physical well-being of woman becomes an object of public interest and care in
order to 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, may, without conflicting with the provisions and this control in
various forms, with diminishing intensity, has continued to the present. As
minors, thought 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
[208 U.S. 412, 422] 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 independent position in life, she is not
upon an equality. Differentiated by these matters from the other sex, she is
properly 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 a proper
discharge of her maternal functions-having in view not merely her own 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
[208 U.S. 412, 423] justifies a difference in legislation, and upholds
that which is designed to compensate for some of the burdens which rest upon
We have not referred in this discussion to the denial of the elective
franchise in the state of Oregon, for while that may disclose a lack of
political equality in all 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.
[ Footnote 1 ] 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, Gen. Stat. Revision 1902, 4691;
Maine: 1887, Rev. Stat. 1903, chap. 40, 48; New Hampshire: 1887, Laws 1907,
chap. 94, p. 95; Maryland: 1888, Pub. Gen. Laws 1903, art. 100, 1; Virginia:
1890, Code 1904, title 51A, chap. 178A, 3657b; Pennsylvania: 1897, Laws 1905,
No. 226, p. 352; New York: 1899, Laws 1907, chap. 507, 77, subdiv. 3, p. 1078;
Nebraska: 1899, Comp. Stat. 1905, 7955, p. 1986; Washington: Stat. 1901, chap.
68, 1, p. 118; Colorado: Acts 1903, chap. 138, 3, p. 310; New Jersey: 1892, Gen.
Stat. 1895, p. 2350, 66. 67; Oklahoma; 1890, Rev. Stat. 1903, chap. 25, art. 58,
729; North Dakota: 1877, Rev. Code 1905, 9440; South Dakota: 1877, Rev. Code
(Penal Code 764), p. 1185; Wisconsin: 1897, 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.
Then follow extracts from over ninety reports of committees, bureaus of
statistics, commissioners of hygiene, inspectors of factories, both in this
country and in Europe, to the effect that long hours of labor are dangerous for
women, primarily because of their special physical organization. The matter is
discussed in these reports in different aspects, but all agree as to the danger.
It would, of course, take too much space to give these reports in detail.
Following them are extracts from similar reports 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.'