Bunting v. Oregon Primary Source eText

Primary Source

Government wage regulations, requiring time-and-a-half pay for overtime, entered the workplace in 1917. THE LIBRARY OF CONGRESS. Government wage regulations, requiring time-and-a-half pay for overtime, entered the workplace in 1917. THE LIBRARY OF CONGRESS. Published by Gale Cengage THE LIBRARY OF CONGRESS.

Supreme Court decision

By: Joseph McKenna

Date: April 9, 1917

Source: McKenna, Joseph. Bunting v. State of Oregon, 243 U.S. 426 (1917). Available online at http://caselaw.lp.findlaw.com/us/243/426.html; website home page: http://caselaw.lp.findlaw.com (accessed January 22, 2003).

About the Author: Joseph McKenna (1843–1926) served as a representative from California to the U.S. House of Representatives and as judge for the Ninth Circuit Court of Appeals. In 1897, he served briefly as attorney general before President William McKinley (served 1897–1901) appointed him associate justice of the Supreme Court, where he served until his resignation in 1925.


Throughout the nineteenth century, employers in the United States were allowed to treat workers in ways that, by modern standards, seem outrageous. Employees were expected to work at least six days a week, ten or twelve hours a day. Steel workers had to labor seven days a week, twelve hours a day, with a twenty-four hour shift every two weeks to switch shifts. Attempts to unionize were met with strong resistance, and government attempts to regulate hours and wages were generally fruitless, for industry lobbies were generally stronger than those for labor. Even when state and local laws regulating the workplace were passed, they did not always take effect. In the late 1800s and early 1900s, the Supreme Court struck down many such laws because, the Court maintained, they interfered with interstate commerce, which was regulated solely by the federal government, or for interfering with individual property rights.

During these years, the Supreme Court developed a doctrine known as "freedom of contract," which held that legislatures had no right to interfere with an individual's freedom to make contracts, such as the contract between a worker and an employer. This freedom of contract, the Court said, was protected by the Fourteenth and Fifteenth Amendments to the Constitution. This doctrine shaped several Supreme Court decisions, including its decision in Lochner v. New York (1905) striking down a New York law limiting bakers' work weeks to sixty hours. The proponents of a limited work week were not daunted, however, and the first successful hours limit was upheld by the Supreme Court in Muller v. Oregon (1908). The case involved an Oregon law that limited the workday for women to ten hours a day. It is noteworthy in part because future Supreme Court justice Louis D. Brandeis defended the Oregon law before the Court by citing a wealth of scientific "evidence" that women were weaker than men and that long work hours limited their reproductive capacity—the first time the Supreme Court had taken such extralegal data into consideration in rendering a decision. The law in question in Bunting, though, went much further than the law in Muller. It limited the work-day for both men and women to ten hours and mandated time-and-a-half pay for work over ten hours a day.


The Supreme Court upheld the Oregon law in Bunting v. Oregon, another step toward allowing government regulation of the workplace. This case is unique in that it was one of the first that upheld wage regulations in addition to hours regulations. In 1917 the Supreme Court went further when it upheld a worker's compensation act. Many at the time thought that the doctrine of freedom of contract expressed in Lochner was dead, but this belief proved to be premature, for in Adkins v. Childrens Hospital (1923), the Supreme Court struck down a minimum wage law for women in the District of Columbia. The Adkins decision, and the general belief in liberty of contract, proved troublesome for the Franklin D. Roosevelt (served 1933–1945) administration in the 1930s, when the Supreme Court struck down several of his New Deal initiatives attempting to create programs to stimulate the economy and help the country during the Great Depression. The issue of wage and hours regulation was finally decided in 1941 in U.S. v. Darby, when the Court upheld the Fair Labor Standards Act which had created both a federal minimum wage and a maximum hours work week.

Primary Source: Bunting v. State of Oregon [excerpt]

SYNOPSIS: Justice McKenna summarizes Bunting's complaint: that the law regulates wages and is an attempt by the state to fix prices. McKenna counters by stating that as the law does not fix a specific minimum wage, it cannot be considered price-fixing. He goes on to say that the requirement of time-and-a-half for overtime represents a method of forcing employers to abide by the law while still allowing them to require employees to work extra hours in emergency situations.

Justice McKenna delivered the opinion of the Court.

Indictment charging a violation of a statute of the state of Oregon, 2 of which provides as follows:

No person shall be employed in any mill, factory or manufacturing establishment in this state more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in case of emergency, where life or property is in imminent

danger; provided, however, employees may work overtime not to exceed three hours in any one day, conditioned that payment be made for such overtime at the rate of time and one half of the regular wage.…

The consonance of the Oregon law with the 14th Amendment is the question in the case, and this depends upon whether it is a proper exercise of the police power of the state, as the supreme court of the state decided that it is.

That the police power extends to health regulations is not denied, but it is denied that the law has such purpose or justification. It is contended that it is a wage law, not a health regulation, and takes the property of plaintiff in error without due process. The contention presents two questions: (1) Is the law a wage law, or an hours-of-service law? And (2) if the latter, has it equality of operation?

Section 1 of the law expresses the policy that impelled its enactment to be the interest of the state in the physical well-being of its citizens and that it is injurious to their health for them to work "in any mill, factory or manufacturing establishment" more than ten hours in any one day; and § 2, as we have seen, forbids their employment in those places for a longer time. If, therefore, we take the law at its word, there can be no doubt of its purpose, and the supreme court of the state has added the confirmation of its decision, by declaring that "the aim of the statute is to fix the maximum hours of service in certain industries. The act makes no attempt to fix the standard of wages. No maximum or minimum wage is named. That is left wholly to the contracting parties."…

It is, however, urged that we are not bound by the declaration of the law or the decision of the court. In other words, and to use counsel's language, "the legislative declaration of necessity, even if the act followed such declaration, is not binding upon this court." … Of course, mere declaration cannot give character to a law nor turn illegal into legal operation, and when such attempt is palpable, this court necessarily has the power of review.

But does either the declaration or the decision reach such extreme? Plaintiff in error, in contending for this and to establish it, makes paramount the provision for overtime; in other words, makes a limitation of the act the extent of the act—indeed, asserts that it gives, besides, character to the act—illegal character.

To assent to this is to ascribe to the legislation such improvidence of expression as to intend one thing and effect another; or artfulness of expression to disguise illegal purpose. We are reluctant to do either, and we think all the provisions of the law can be accommodated without doing either.

First, as to plaintiff in error's attack upon the law. He says: "The law is not a ten-hour law; it is a thirteen-hour law designed solely for the purpose of compelling the employer of labor in mills, factories, and manufacturing establishments to pay more for labor than the actual market value thereof." And further: "It is a ten-hour law for the purpose of taking the employer's property from him and giving it to the employee; it is a thirteen-hour law for the purpose of protecting the health of the employee." To this plaintiff in error adds that he was convicted, not for working an employee during a busy season for more than ten hours, but for not paying him more than the market value of his services.…

There is a certain verbal plausibility in the contention that it was intended to permit thirteen hours' work if there be fifteen and one-half hours' pay, but the plausibility disappears upon reflection. The provision for overtime is permissive, in the same sense that any penalty may be said to be permissive. Its purpose is to deter by its burden, and its adequacy for this was a matter of legislative judgment under the particular circumstances. It may not achieve its end, but its insufficiency cannot change its character from penalty to permission. Besides, it is to be borne in mind that the legislature was dealing with a matter in which many elements were to be considered. It might not have been possible, it might not have been wise, to make a rigid prohibition. We can easily realize that the legislature deemed it sufficient for its policy to give to the law an adaptation to occasions different from special cases of emergency for which it provided, occasions not of such imperative necessity, and yet which should have some accommodation—abuses prevented by the requirement of higher wages. Or even a broader contention might be made that the legislature considered it a proper policy to meet the conditions long existent by a tentative restraint of conduct rather than by an absolute restraint, and achieve its purpose through the interest of those affected rather than by the positive fiat of the law.

We cannot know all of the conditions that impelled the law or its particular form.…

But we need not cast about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise.… It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives, perhaps, evasion too much play, is lighter in its penalties than it might be, is no impeachment of its legality. This may be a blemish, giving opportunity for criticism and difference in characterization, but the constitutional validity of legislation cannot be determined by the degree of exactness of its provisions or remedies. New policies are usually tentative in their beginnings, advance in firmness as they advance in acceptance. They do not at a particular moment of time spring full-perfect in extent or means from the legislative brain. Time may be necessary to fashion them to precedent customs and conditions, and as they justify themselves or otherwise they pass from militancy to triumph or from question to repeal.

But passing general considerations and coming back to our immediate concern, which is the validity of the particular exertion of power in the Oregon law, our judgment of it is that it does not transcend constitutional limits.

This case is submitted by plaintiff in error upon the contention that the law is a wage law, not an hours-of-service law, and he rests his case on that contention. To that contention we address our decision and do not discuss or consider the broader contentions of counsel for the state that would justify the law even as a regulation of wages.

There is a contention made that the law, even regarded as regulating hours of service, is not either necessary or useful "for preservation of the health of employees in mills, factories, and manufacturing establishments." The record contains no facts to support the contention, and against it is the judgment of the legislature and the supreme court, which said: "In view of the well-known fact that the custom in our industries does not sanction a longer service than ten hours per day, it cannot be held, as a matter of law, that the legislative requirement is unreasonable or arbitrary as to hours of labor. Statistics show that the average daily working time among workingmen in different countries is, in Australia, 8 hours; in Britain, 9; in the United States, 9 ¾; in Denmark, 9 ¾; in Norway, 10; Sweden, France, and Switzerland, 10 ½; Germany, 10 ¼; Belgium, Italy, and Austria, 11; and in Russia, 12 hours."…

Further discussion we deem unnecessary.

Judgment affirmed.

The Chief Justice, Mr. Justice Van Devanter, and Mr. Justice McReynolds, dissent.

Mr. Justice Brandeis took no part in the consideration and decision of the case.

Further Resources


Frankfurter, Felix, and Josephine Goldmark. Franklin O. Bunting, Plaintiff in Error, Vs. the State of Oregon, Defendant in Error. In Error to the Supreme Court of the State of Oregon. Brief for the Defendant in Error. New York: C.P. Young, 1915.

——. The Case for the Shorter Work Day, Franklin O. Bunting, Plaintiff in Error, vs. the State of Oregon, Defendant in Error. Brief for Defendant in Error. Felix Frankfurter, of Counsel for the State of Oregon. Assisted by Josephine Goldmark. New York: National Consumer's League, 1916.

Frankfurter, Felix. Supplemental Brief for Defendant-in-Error upon Reargument, vs. the State of Oregon, Defendant in Error [in the] Supreme Court of the United States, October Term, 1916, no. 38. New York: National Consumer's League, 1917.


Bannister, Robert. "The United States in the Progressive Era: Guide to Resources." Available online at http://www.swarthmore.edu/SocSci/rbannis1/Progs/; website home page: http://www.swarthmore.edu (accessed January 22, 2003).