CALIFORNIA DRIVE IN RESTAURANT ASS ET AL v. CLARK CHIEF OF DIVISION OF INDUSTRIAL WELFARE ET AL

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District Court of Appeal, Second District, Division 1, California.

CALIFORNIA DRIVE–IN RESTAURANT ASS'N ET AL. v. CLARK, CHIEF OF DIVISION OF INDUSTRIAL WELFARE, ET AL.

Civ. 13550.

Decided: September 21, 1942

Earl Warren, Atty. Gen., Alberta Belford, Deputy Atty. Gen., and Leo L. Schaumer and E. A. Lackmann, both of Los Angeles, for appellants. Edward R. Young, Frank R. Johnston, Thorpe & Bridges, and Gerald Bridges, all of Los Angeles, for respondents.

This action was commenced by seventy–five owners of what are commonly known as drive–in restaurants in Southern California, asking an injunction and declaratory relief. As described in respondents' brief, the drive–in restaurant business is principally concerned with the preparing and serving of food and drink to patrons seated in their automobiles which are parked on the premises around the restaurant. The employees serving such patrons are known as “car hops”. They are generally young women, although both men and women are employed by respondents.

On June 8, 1923, the Industrial Welfare Commission of the State of California adopted what is referred to herein as Order No. 12–A, fixing the minimum wage for adult women and female minors employed in restaurants. Paragraph 3 thereof provides that: “No employer may include tips or gratuities received by employees designated in Section 1 hereof as part of the legal minimum wage fixed by said section of this Order.” In 1929 the Legislature adopted an act requiring all employers who accept tips or gratuities given to employees by the general public to post notice of such policy or practice in a conspicuous place in the establishment in which the business or enterprise is carried on. Stats.1929, ch. 891, p. 1971. Said act defines a “tip” to be, among other things, “any amount deducted from wages due the worker on account of such tips or gratuities paid or left by patrons”. Said act, in section 2 thereof, also provides that: “Every employer, or agent of any employer, who collects, takes or receives any tips or gratuities, or a part thereof, paid or given to or left for his employees by patrons, or who deducts any amount from wages due his employees on account of such tips or gratuities, or who requires his employees to credit the amount, or any part thereof, of such tips or gratuities received by them against and as a part of the wages due such employees from said employer, shall post and keep posted in a conspicuous place at the location or locations where the said business or enterprise is carried on, where it can easily be seen by the patrons thereof, a notice or notices, in lettering or printing of not less than forty–eight–point blackface type, to the following effect, as the case may be: * * *”

Following the adoption of the aforesaid provisions the plaintiffs entered into contracts with their “car hops”, by the terms of which tips were applied to wages. In that connection, there is no contention that said statutes of 1929 were not followed. On December 28, 1939, defendant Margarete L. Clark, as chief of the Division of Industrial Welfare of the State of California, notified plaintiffs herein, as well as other owners and operators of drive–in restaurants, to attend a meeting to be held in the State Building at Los Angeles, on January 18, 1940. Upon the convening of such meeting the aforesaid chief of the Division of Industrial Welfare delivered to all parties summoned to and present at such meeting a copy of the aforesaid order No. 12–A of the Industrial Welfare Commission, and thereupon announced to each and all of the parties present that the contracts between such employers and the “car hops”, so far as they provided for the counting of tips as wages, were unlawful and in violation of the above–named order No. 12–A; that on and after February 1, 1940, the State Division of Industrial Welfare, through its chief, Margarete L. Clark, would prosecute both civilly and criminally plaintiffs and all other owners and operators of drive–in restaurants for any violation of section 3 of order No. 12–A. Thereafter plaintiffs filed the instant action, secured the issuance of a preliminary injunction therein restraining defendants from enforcing or attempting to enforce in any way the provisions of section 3 of order No. 12–A. Following trial such injunction was by judgment made permanent, and from such judgment defendants prosecute this appeal.

Appellants' brief sets forth the statement of questions involved as follows:

“I. Is Section 3 of Order No. 12–A of the Industrial Welfare Commission of the State of California unconstitutional and violative of Article I, Section 1, and Article I, Section 13, of the Constitution of California and the Fourteenth Amendment to the Constitution of the United States?

“II. Did the Industrial Welfare Commission in enacting Section 3 of Order No. 12–A exceed the jurisdiction conferred upon it by Article XX, Section 17 1/2, of the Constitution of California and the legislation enacted pursuant thereto (particularly Statutes of 1921, Chap. 279, as amended, reenacted into Sections 1171–1203, inclusive, of the Labor Code of California [St.1937, pp. 213–218])?

“III. Did the legislature in enacting the so–called “Tipping Law” (Statutes of 1929, Chap. 891, re–enacted into the Labor Code, Sections 351 [350] to 356, inclusive) repeal by implication Section 3 of said Order No. 12–A?”

Respondents contend, first, that section 3 of order 12–A was repealed by implication upon the enactment of the “tipping law of 1929” for the following reasons: (a) The Industrial Welfare Commission interpreted section 3 of order 12–A as having been superseded by the “tipping law of 1929”. (b) Section 3 is repugnant to and irreconcilable with the “tipping law of 1929”. (c) The Legislature intended the “tipping law of 1929” to supersede prior legislation on the matter of tips. And, second, the Industrial Welfare Commission in enacting section 3 of order 12–A acted in excess of its jurisdiction for the following reasons: (a) Section 3 of order 12–A is invalid because it is an unconstitutional interference with the freedom of contract. (b) Section 3 of order 12–A is unconstitutional in that it is a denial of the equal protection of the laws and is not uniform in its operation. (c) The lack of necessary findings by the Commission renders section 3 invalid. (d) The Legislature did not delegate to the Commission the power to prohibit the counting of tips as wages.

The basic law affecting the controversy is to be found in section 17 1/2 of Article XX of the Constitution, which is as follows: “The Legislature may, by appropriate legislation, provide for the establishment of a minimum wage for women and minors and may provide for the comfort, health, safety and general welfare of any and all employees. No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon any commission now or hereafter created, such power and authority as the Legislature may deem requisite to carry out the provisions of this section.” (Italics added.)

It will be seen from the foregoing provision of the Constitution that it is not self–executing. The method to be employed “for the establishment of a minimum wage for women and minors” is left to the judgment, discretion and wisdom of the Legislature. The sole and exclusive power is vested in the Legislature. Clothed with this exclusive power, which also includes the power to confer authority upon any commission the Legislature may create, the Legislature established by appropriate legislation the Industrial Welfare Commission. Whatever authority the Legislature delegated to the Industrial Welfare Commission it must be emphasized was not irrevocably delegated. Indeed, by reason of the constitutional provision, exclusive and irrevocable authority could not be so delegated. That is to say, although it may have either apparently or actually vested a certain authority in the Industrial Welfare Commission, nevertheless, the Legislature was by the Constitution impressed with an ultimate responsibility which cannot be either avoided or evaded. The Legislature also has the power, by reason of article XX of the Constitution, to limit, extend or modify any authority so delegated. So comprehensive is the power of the Legislature, that all or any of the things required to be done by the Industrial Welfare Commission in effecting the purpose of article XX, could be done by the Legislature directly. Manifestly, however, the Commission was created to facilitate the work incident to the adopted procedure, but, in no sense was the Legislature, by creating this procedure, stripped of its power and relieved of its duty to alter and change it at will. Hence, whatever rules the Industrial Welfare Commission may adopt, the Legislature has the power to limit, modify or destroy, by appropriate legislation, for the Commission is the creature of the Legislature, subject, in effect, to the control of the Legislature in every phase of its deliberations and functions.

Manifestly, the Legislature can act only in the manner provided for in the Constitution. Hence the Legislature's control over its agencies can be effected only by legislation. By the creation of the Industrial Welfare Commission the Legislature has vested certain authority in said Commission. However, such authority is not exclusive, but on the contrary is conditional. Therefore, whatever the Industrial Welfare Commission does properly within the limitation of the authority granted is valid, unless superseded by an act of the Legislature.

The only question presented by the controversy, is therefore simple. The Commission adopted a rule it sought to enforce. Respondents enjoined the enforcement of this rule, contending that the situation sought to be controlled by the Commission was already directly covered by statute, viz., the tipping law of 1929. This appears to be true; hence, the only function of the courts is to reconcile any possible conflict between the rule of the Commission and the statute. If a reconciliation is impossible then the act of the Legislature must prevail, for under the Constitution only the Legislature can “provide” for the things here in controversy.

The statutes of 1929, supra, and section 3 of order No. 12–A, supra, deal with the same subject. The former authorizes and regulates the deduction of tips from wages, whereas by the latter, such transactions are prohibited. Manifestly, such a conflict cannot be reconciled. Hence, the conclusion is inevitable that the authority of the Legislature must prevail.

The statutes of 1929, supra, provide that: “The Legislature also expressly declares that the purpose of this act is to prevent fraud upon the public in connection with the practice of tipping and declares this a law passed for a public reason which can not be contravened by a private agreement and as a part of the social public policy of this state, binding upon all departments of the state government.” § 5. It is urged in effect that such a declaration thus incorporated in the statute is sufficient to avoid a conflict. It could not be so construed. The act is comprehensive and fully embraces the subject. It is evident from a reading of the statute that, although it is declared to be to prevent fraud upon the public and cannot be contravened by a private agreement, nevertheless it authorizes as valid the matters therein referred to, subject to the conditions also therein recited. In any event, construction and interpretation present a judicial question which the Legislature is without power to limit. As the Supreme Court has heretofore declared: “While ordinarily it is the rule that, when the lawmaking power distinctly states its design in the enactment of a particular statute, no room is left for construction, nevertheless, as the District Court of Appeal well said during its discussion of this phase of the case: ‘The label placed by the Legislature upon its work cannot be permitted to give it a meaning not fairly contemplated within its terms.’ In other words, a legislative declaration, whether contained in the title or in the body of a statute, that the statute was intended to promote a certain purpose, is not conclusive on the courts, and they may and must inquire into the real, as distinguished from the ostensible, purpose of the statute, and determine the fact whether, after all has been said and done by the Legislature, the statute, in its scope and effect, departs from the declared legislative design * *.” Coulter v. Pool, 187 Cal. 181, 185, 201 P. 120, 122.

It is significant and the undisputed fact, as the trial court found, that with reference to paragraph 3 of order No. 12–A “* * * in 1932 the defendant Division of Industrial Welfare of the State of California informed the plaintiff California Pig Stands Inc. that it was legal to count tips as wages, provided signs were posted at the place of business in accordance with the said tipping statute of 1929 * * *; that subsequent to the enactment of the tipping statute of 1929 and until December 28, 1939, the Division of Industrial Welfare of the State of California treated the contracts of employment existing between plaintiffs and female car hop employees, with respect to the counting of tips as wages, as a compliance with the minimum wage laws of the State of California.” Thus by contemporaneous construction it would appear that the Division of Industrial Welfare regarded the statute of 1929 as controlling. In that connection it is noteworthy that the law declares that “Contemporaneous exposition is in general the best”. Civ.Code, § 3535.

Although section 3 of order No. 12–A may operate “only upon women and minors in the hotel and restaurant industry” as pointed out by appellant, nevertheless such group is not excluded from the operation of the statute of 1929 but, on the contrary, is necessarily included in the general terms of that statute.

Inasmuch as a consideration of the questions as to whether section 3 of order No. 12–A is constitutional or whether the Industrial Welfare Commission exceeded its jurisdiction or whether the so–called “tipping law” (Statutes of 1929, supra) repealed by implication section 3 of order 12–A, bear no relation to the subject of “conflict” which is the basis of the conclusion expressed herein, such questions may be disregarded.

For the foregoing reasons the judgment is affirmed.

I dissent. I am not in accord with the reasoning relied upon nor the conclusion reached by my associates, that the statutes of 1929 (ch. 891, p. 1971), now sections 350–356 of the Labor Code, St.1937, pp. 202, 203, are in conflict with and therefore annul and supersede Industrial Welfare Board Order No. 12–A. In the belief that it may prove enlightening and helpful in the determination of the issues presented upon this appeal, let us here set forth the historic background surrounding the regulation of minimum wages and hours for women and the adoption of so–called tipping laws in this state. In 1911 the Legislature first attempted by statute to regulate minimum wages and hours for women. This statute brought into being the Industrial Welfare Commission and clothed it with certain powers and prerogatives. Serious doubts were cast upon the constitutionality of this initial statute, based upon the ground that it unlawfully delegated to the Welfare Commission legislative powers. Two years later, in 1913, the Legislature submitted to the people a constitutional amendment, which was adopted in 1914, and became section 17 1/2 of article XX of our state Constitution. It reads: “The Legislature may, by appropriate legislation, provide for the establishment of a minimum wage for women and minors and may provide for the comfort, health, safety and general welfare of any and all employees. No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon any commission now or hereafter created, such power and authority as the Legislature may deem requisite to carry out the provisions of this section.”

Pursuant to the foregoing constitutional mandate, the Legislature chose to delegate to the Industrial Welfare Commission legislative power to adopt regulations for the comfort, health, safety and general welfare of employees and to establish a minimum wage for women and minors. This legislative power is now contained in sections 1171 to 1203 of the Labor Code, St.1937, pp. 213–218, and section 1182 reads:

“The commission may also, after a public hearing had upon its own motion or upon petition, fix:

“(a) A minimum wage to be paid to women and minors engaged in any occupation, trade, or industry in this State, which shall not be less than a wage adequate to supply the necessary cost of proper living to, and maintain the health and welfare of, such women and minors.

“(b) The maximum hours of work consistent with the health and welfare of women and minors engaged in any occupation, trade, or industry in this State. The hours so fixed shall not be more than the maximum now or hereafter fixed by law.

“(c) The standard conditions of labor demanded by the health and welfare of the women and minors engaged in any occupation, trade, or industry in this State.”

In 1917 the Legislature enacted the first tipping law, under which it was sought to prohibit employers from appropriating to themselves the tips given employees. Stats. 1917, ch. 172, p. 257. In part this act reads as follows: “Any employer or agent or representative of an employer or other person having authority from his employer to hire, employ or direct the services of other persons in the employment of said employer, who shall demand or receive directly or indirectly from any person then in the employment of said employer, any fee, gift or other remuneration or consideration, or any part or portion of any tips or gratuities received by such employee while in the employment of said employer, in consideration or as a condition of such employment or hiring or employing any person to perform such services for such employer or of permitting said person to continue in such employment, is guilty of a misdemeanor.”

On July 30, 1918, our Supreme Court declared this law unconstitutional in the case of In re Farb, 178 Cal. 592, 174 P. 320, 3 A.L.R. 301. Nothing further was done in relation to a tipping law until 1929, when the Legislature adopted another such statute (Stats.1929, ch. 891), now embodied in sections 350 to 356 inclusive of the Labor Code. This legislation did not have for its object the prohibition against an employer's deducting the amount of tips or gratuities from an employee's wages, but sought only to regulate such practice, as is evidenced by the following sections of the Labor Code:

“351. Every employer or agent who collects, takes, or receives any gratuity, or a part thereof, paid, given to, or left for an employee by a patron, or who deducts any amount from wages due an employee on account of such gratuity, or who requires an employee to credit the amount, or any part thereof, of such gratuity against and as a part of the wages due the employee from the employer, shall keep posted in a conspicuous place at the location where his business is carried on, in a place where it can easily be seen by the patrons thereof, a notice, in lettering or printing of not less than forty–eight–point black–face type, to the following effect:

“(a) If not shared by the employees, that any gratuities paid, given to, or left for employees by patrons go to and belong to the business or employer and are not shared by the employees thereof.

“(b) If shared by the employees, the extent to which gratuities are shared between employer and employees.

“352. The notice shall also state the extent to which the employees are required by the employer to accept gratuities in lieu of wages or the extent to which the employee is required to accept and credit gratuities against wages.”

The respondents contended, the trial court found, and the majority opinion declares, that whatever legal effect section 3 of order No. 12–A, adopted by the Industrial Welfare Commission on June 8, 1923, ever had was superseded by the provisions of the last mentioned tipping statute of 1929, and that the Commission's regulation was void and without legal effect since the adoption of such statute. As heretofore indicated, these last mentioned sections make it unlawful for an employer to deduct any amount from wages due an employee on account of any gratuity or tip received by such employee unless there is posted in a conspicuous place on the location where the business is carried on a notice in lettering or printing of not less than forty–eight–point blackface type that any gratuities, paid or given to employees are not shared by such employees, or if shared by the employees the extent to which gratuities are shared between employer and employee. The trial court found that whatever legal effect was attached to the Industrial Welfare Commission's order No. 12–A was repealed and invalidated by the adoption of the aforesaid tipping statute of 1929. Section 6 of the just mentioned statute of 1929 provided: “All acts or parts of acts in conflict herewith are hereby expressly repealed.” The majority opinion in effect holds that the Industrial Welfare Commission order was annulled and superseded by implication because of its repugnance to the later enacted statute.

In relation to the repeal of laws or statutes by implication, the rule is well established that the earliest act remains in force unless it manifestly appears that the two are inconsistent with and repugnant to each other. People v. Platt, 67 Cal. 21, 22, 7 P. 1. Furthermore, the rule of law that the repeal of a statute by implication is not favored is elementary. Hammond v. McDonald, 32 Cal.App.2d 187, 192, 89 P.2d 407. Whenever it can reasonably be done, the language of a statute should be construed so as to effectuate and promote, rather than to defeat, the obvious purpose of the Legislature, and the legislative intent must be arrived at from the language of the statute. As stated by the Supreme Court in In re Marquez, 3 Cal.2d 625, 628, 45 P.2d 342, 343, “The statute, of course, must be read and construed as a whole in harmony with other statutes relating to the same general subject.” If the two statutes may stand together, are not irreconcilable, clearly repugnant, or so inconsistent that the two cannot have concurrent operation, the courts are bound, if possible, to maintain the integrity of both. In other words, where a modification would suffice, a repeal will not be presumed. Penziner v. West American Fin. Co., 10 Cal.2d 160, 176, 74 P.2d 252.

Applying the foregoing rules of construction to the question of whether the tipping law of 1929 repealed by implication section 3 of the order No. 12–A, we find that the object of the claimed repealing statute is thus expressed in section 356 of the Labor Code: “The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As a part of the social public policy of this State, this article is binding upon all departments of the State.”

The aim and purpose of order No. 12–A was to insure the payment to women employees and minor female employees for their labor a minimum wage of $16 per week, irrespective of gratuities or tips received by them. In fixing the minimum wage at $16 per week, the Commission may well have taken into consideration the fact that tips are received by such employees, but to insure the payment of the minimum wage the commission was not bound to recognize a private agreement between employer and employee under the terms of which, through connivance or otherwise, the valid order of the Commission establishing a minimum wage could be circumvented. Nor do I think that in enacting the tipping law of 1929 it can be reasonably inferred therefrom, in the absence of a direct declaration to that effect by the legislative body, that it was intended to vitiate section 3 of order No. 12–A, which order applied only to women and minor female employees. It must be assumed that at the time of the passage of the 1929 tipping law, the Legislature was aware of the existence of section 3 of order No. 12–A, promulgated as it was in June, 1923. Furthermore, the express purpose of the 1929 statute was to prevent fraud upon the public, while the intent and purpose of the Industrial Welfare Commission order was to insure a $16 per week minimum wage for women and minor female employees irrespective of tips received by them. Therefore, giving a fair and reasonable construction of both statutes, I am not impressed that one is in conflict with or repugnant to the other, but that on the contrary, we have a general statute operating upon all employers and a special statute which provides that as to a particular class, viz., women and minor female employees, the exception provided in the general statute validating appropriation of tips by employers under certain conditions shall not be applicable.

The conclusion in this regard is strengthened when we contemplate the history of the legislation on the subject. We have the constitutional mandate of the people (Const. art. XX, § 17 1/2) empowering the Legislature to invest the Industrial Welfare Commission with plenary power to establish a minimum wage for women and minors and to provide, among other things, for the comfort, safety and general welfare of such employees. Then we have the action of the Legislature outlawing the practice of deducting tips from an employee's wages to prevent fraud and deception upon the public (Stats. 1917, ch. 172), which act was declared unconstitutional in the case of In re Farb, supra. This was followed by the adoption of the 1929 tipping law, which was also designed to protect the public from imposition so far as the giving of tips was concerned. Nowhere in the history of this legislation do we find any indication of a legislative intent to impinge upon the prerogatives of the Industrial Welfare Commission in connection with the performance of its duty to secure to women and minor female employees a minimum wage separate and apart from the tips or gratuities received by such employees. The Industrial Welfare Commission was in my opinion empowered, pursuant to the constitutional provision and legislative enactments made pursuant thereto, to adopt section 3 of order No. 12–A here under consideration, upon the theory that women and children were in a special class and not possessed of equal bargaining power with men in dealing with their employers, and were therefore a proper subject of protective legislation under the police power. Consequently, it is my conviction that we should hold that order No. 12–A is not repugnant to nor inconsistent with the tipping law of 1929, and was not repealed by the enactment of the last mentioned statute.

If it be determined that the trial court and the majority opinion herein erroneously decided the issue just discussed, then there are other, and to my mind, important questions raised by appellants and erroneously decided by the trial court, which should receive consideration on this appeal. In this regard, respondents contended in the trial court and the court concluded that section 3 of order No. 12–A of the Industrial Welfare Commission is in conflict with, contravenes and violates the provisions of sections 1 and 13 of article I of our state Constitution and the Fourteenth Amendment to the Constitution of the United States, and is therefore void and invalid, in that it deprives respondents of their right to freely contract with their employees in derogation of their guaranteed rights, without due process of law. The same contention is now made on this appeal. To epitomize respondents' contention herein, it is that the minimum wage and hour law for women deprives them of their constitutional freedom of contract. But the Constitution does not speak of freedom of contract. It speaks of liberty, and prohibits the deprivation of liberty without due process of law. In its provisions outlawing that deprivation of liberty, the Constitution does not establish or recognize a liberty that is absolute or uncontrollable. The liberty guaranteed by the Constitution is liberty in an organization of social beings which requires the protection of law against those evils which demoralize and menace the health, safety, morals and welfare of the people. Therefore regulation which is reasonable in relation to the subject to which it is applied and which is adopted in the interests of the community is in itself due process. Through the years, now more than twenty–five in number, the courts have recognized and declared that freedom of contract is a qualified and not an absolute right. No one is vested with the absolute freedom to do as he pleases or wills or to contract as he chooses. It is the absence of arbitrary restraint, and not immunity from reasonable regulations and prohibitions adopted in the interests of the community, that liberty implies. Thus, statutes have been sustained limiting employment in underground mines and smelters to eight hours a day (Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780); in requiring redemption in cash of store orders or other evidences of indebtedness issued in the payment of wages (Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22 S.Ct. 1, 46 L.Ed. 55); in forbidding the payment of seamen's wages in advance (Patterson v. The Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002); in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315); in prohibiting contracts limiting liability for injuries to employees (Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328); in limiting hours of work of employees in manufacturing establishments (Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830, Ann.Cas.1918A, 1043); and in maintaining workmen's compensation laws. New York C. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas.1917D, 642, 13 N.C.C.A. 927.

In connection with the relation of employer to employee, in order to protect the health and safety, as well as to assure the promotion of peace and good order, the Legislature is clothed with a wide field of discretion in making regulations to insure wholesome conditions of work and freedom from oppression. Chicago, B. & Q. R. Co. v. McGuire, supra. The claim so often stressed that employees, and in particular adult employees, should be deemed competent to make their own contracts, was encountered and decisively met more than forty years ago in Holden v. Hardy, supra, wherein the Supreme Court of the United States, in directing attention to the inequality in the footing of the parties, said [169 U.S. 366, 18 S.Ct. 390, 42 L.Ed. 780]:

“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 as possible from their employees, 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 promptly interpose its authority.

“* * * 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.’ ”

The principles just stated have a peculiar application in regard to the employment of women in whose protection the state has a special interest. The extent of this interest was emphasized in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 326, 52 L.Ed. 551, 13 Ann.Cas. 957, where the constitutional authority of the state to limit the working hours of women was sustained. It was there emphasized that “woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence” and her physical well–being “becomes an object of public interest and care in order to preserve the strength and vigor of the race.” In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 394, 57 S.Ct. 578, 583, 81 L.Ed. 703, 108 A.L.R. 1330, the Supreme Court, in referring to Muller v. Oregon, supra, said in part: “We emphasized the need of protecting women against oppression despite her possession of contractual rights. We said that ‘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.’ Hence she was ‘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.’ We concluded that the limitations which the statute there in question ‘places upon her contractual powers, upon her right to agree with her employer, as to the time she shall labor’ were ‘not imposed solely for her benefit, but also largely for the benefit of all.’ Again, in Quong Wing v. Kirkendall, 223 U.S. 59, 63, 32 S.Ct. 192, 56 L.Ed. 350 [352], in referring to a differentiation with respect to the employment of women, we said that the Fourteenth Amendment did not interfere with state power by creating a ‘fictitious equality.’ We referred to recognized classifications on the basis of sex with regard to hours of work and in other matters, and we observed that the particular points at which that difference shall be enforced by legislation were largely in the power of the state. In later rulings this Court sustained the regulations of hours of work of women employees in Riley v. Massachusetts, 232 U.S. 671, 34 S.Ct. 469, 58 L.Ed. 788 (factories); Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A.1915F, 829 (hotels); and Bosley v. McLaughlin, 236 U.S. 385, 35 S.Ct. 345, 59 L.Ed. 632 (hospitals).”

The Legislature possessed the right to consider that the maximum hours and minimum wage law for women would be an important aid in carrying out its policy of protection along the lines we have just discussed. The adoption of statutes similar to ours in many other states is indicative of an abiding conviction of the existence of the evils, and as to the means to be adopted to check them. Therefore legislative action in relation thereto cannot be regarded as either capricious or arbitrary. Though it may be argued, or even conceded, that the wisdom of such legislative policy is debatable, and the effects thereof uncertain, that does not deprive the legislative branch of the government of the right to its judgment. Furthermore, the eight–hour law and the minimum wage law for women have been held constitutional by the Supreme Court of the United States in Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A.1915F, 829, and West Coast Hotel Co. v. Parrish, supra. By reason of the foregoing, the question of whether the restrictions contained in section 3 of the Industrial Welfare Commission's order have a reasonable relation to a proper purpose, must be answered in the affirmative when we stop to consider, first of all, that the proprietor of the restaurant where the tip is received is not in conscience entitled to it, having already been fully paid for the food and refreshments prepared and served by him. Furthermore, how can it be argued that the public is benefited by an agreement between employer and employee, willingly or unwillingly made, by which the former appropriates the gratuity given to the latter by patrons as a reward for courteous, prompt or faithful service? Such an appropriation of tips would destroy rather than encourage all incentive to furnish the type of service which the tip was given to insure. Again, should the constitutional freedom of contract be invoked to defeat a salutary requirement framed in the public interest as well as to safeguard women and minor employees by preventing employers from compelling their employees, under the pretense of an agreement which from the very nature of things would not as a rule be voluntary, to yield up to their employers that which the employees have earned and the employer has no right to appropriate? I think not. Charged as it is by law with the duty of providing for the comfort, health, safety and general welfare of women and minor female employees and of establishing a minimum wage for women, it seems to me that the Commission is vested with the right to provide a minimum wage exclusive of tips, and that is all that order No. 12–A does. It imposes upon the employer an obligation to pay a stated wage and exempts the employee from the asserted evils of the tipping system in earning her basic pay. There is every reason to assume that the general welfare of women and female minor employees would be enhanced by removing them from the sphere of servility begotten of the tipping system. The donor of a tip never looks upon it as a payment of wages, but rather as a gift or present. That being the case, the recipient of the gift is supposed to show becoming humility and gratitude for the gift so “generously” bestowed. Such a method of compensating for services honestly and efficiently rendered is not at all in conformity with the American conception of the dignity of all labor. The state certainly has a right to establish a basic minimum wage for women and minor female employees and also has the right to provide that such employees shall not be compelled to compete for their wages with the uncertain and varying moods of public generosity. It has well been said that tipping in itself is violative of the code of American business ethics; that it belongs in countries where beggary is a recognized life calling; where petty bribery of government employees is a recognized channel of revenue; where class distinctions are sharp and oppressive, and where cultivated servility is an art. The Oxford English dictionary defines tip as “a small present of money given to an inferior, especially to a servant or employee of another, for services rendered or expected; a gratuity; a douceur.” Certainly under the contract between the women employees and the employers with which we are here concerned, the women workers gained nothing by receiving tips, for what they earned in tips they lost in deduction of a like amount from their weekly minimum wage of $16. However debatable may be the merits of the tipping system, I am not prepared to say that order No. 12–A of the Commission, in removing women and minor employees from the claimed evils of that system, was either arbitrary or unreasonable. The judgment of the Commission that such employees should not be exposed to the asserted evils of the system in earning their basic pay cannot be strictured as capricious or illegal. Its wholesomeness in connection with the general welfare of this particular class of employee with which the Commission is concerned, is a matter for the latter's consideration, and in view of its powers, duties and prerogatives under the law through which it acts, I am not persuaded that the courts should interfere with its decision and judgment herein as being without and beyond its jurisdiction.

The power vested in the Industrial Welfare Commission to fix and determine upon a minimum wage for women and female minor employees carries with it the power to adopt such regulations as might be deemed necessary to effect the enforcement thereof and prevent the secret or surreptitious violation of the order fixing wages in a manner which could not be detected by the Commission without unreasonable expense on its part.

In my judgment, respondents' attack upon the validity of order No. 12–A upon the ground that it contains no findings of fact and was not promulgated in conformity with the requirements of law must fail for the reason that this appeal comes to us upon the judgment roll alone, and we must therefore assume that sufficient and competent evidence was introduced in the court below to sustain the finding by the trial judge that “it is further true that every act and thing required by statute to be done by said Commission in the promulgation and adoption of said Order No. 12–A was done by said Commission within the time and in the form required by statute.”

Finally, respondents assert and the majority opinion agrees that the judgment must be affirmed for the reason that subsequent to the enactment of the tipping statute of 1929, the Industrial Welfare Commission construed the act as having superseded section 3 of its order No. 12–A and ruled that tips could be counted as wages provided employers complied with the provisions of the 1929 tipping statute. Undoubtedly it is the rule, as set forth in the main opinion, that in construing a statute its contemporaneous and practical construction by a board or commission charged with its execution is entitled to consideration and weight; but it is also the rule that while such construction is entitled to consideration it is not conclusive of the question. Only when it becomes necessary to clear up uncertainties and ambiguities may resort be had to the practical construction of a statute. The clear language or plain meaning of a statute cannot be altered by the contemporaneous construction placed thereon by an administrative board. Montgomery v. Board of Administration, etc., 34 Cal.App.2d 514, 521, 93 P.2d 1046, 94 P.2d 610. The provisions of the statutes and laws now before us do not admit the application of the rule of practical construction, because there is no uncertainty or ambiguity attached to them. Whatever erroneous interpretation or construction may have been placed on the statute and laws by former chiefs and members of the Industrial Welfare Commission, and whatever may have been the reasons for such construction or interpretation and consequent failure to enforce such statutes and laws, we are not authorized to follow such erroneous construction where the meaning of the statutes is certain and without ambiguity.

By the judgment here under consideration it was also decreed that an order made by the chief of the Division of Industrial Welfare under date of January 18, 1940, by which respondents were directed to furnish uniforms to their employees, was invalid and void, and appellants were restrained from attempting to enforce the same. Appellants concede the validity of this portion of the judgment and do not contend that the chief of the Division of Industrial Welfare was vested with power to compel the owners of drive–in restaurants to furnish uniforms to their employees. This portion of the judgment should therefore in my opinion be upheld.

For the foregoing reasons, it is my belief that the judgment should be reversed and the cause remanded, with directions to the court below to modify the same in accordance with the views I have herein expressed.

DORAN, Justice.

YORK, P. J., concurred.