George Sutherland

“ I cannot say a priori that the business of employment agencies in New Jersey lacks the requisite 'public interest.' We are judicially aware that the problem of unemployment is of grave public concern; that the conduct of the employment agency business bears an important relationship to that larger problem and affects vitally the lives of great numbers of the population, not only in New Jersey, but throughout the United States ”

“ And I shall not stop to argue that the state has a larger interest in seeing that its workers find employment without being imposed upon, than in seeing that its citizens are entertained. Here, too, if the business is subject to regulation, as seems to be admitted, the regulation which is appropriate and effective is some curtailment of the exorbitant fees charged and not some other form of control which would have no tendency to correct the evils aimed at. ”

“ I cannot accept as vaild the distinction on which the opinion of the majority seems to me necessarily to depend, that granted constitutional power to regulate there is any controlling difference between reasonable regulation of price, if appropriate to the evil to be remedied, and other forms of appropriate regulation which curtail liberty of contract or the use and enjoyment of property. ”

“ In the Tyson Case, supra, we declared unconstitutional an act of the New York Legislature which sought to fix the price at which theater tickets should be sold by a ticket broker, and it is not easy to see how, without disregarding that decision, price-fixing legislation in respect of other brokers of like character can be upheld.
An employment agency is essentially a private business. True, it deals with the public, but so do the druggist, the butcher, the baker, the grocer, and the apartment or tenement house owner, and the broker who acts as intermediary between such owner and his tenants. ”

“ The use by the public generally of the specific thing or business affected is not the test. The nature of the service rendered, the exorbitance of the charges and the arbitrary control to which the public may be subjected without regulation, are elements to be considered in determining whether the 'public interest' exists. ”

“ Finally, it is pointed out that the private agencies charge the employee and do not charge the employer for a service that is rendered to both. The convenience of being furnished with employees is similar to that of being directed to a position; but less effort is required to collect compensation for the whole service from the employee alone. His necessities are normally greater. His bargaining power is normally weaker. The setting of a maximum fee need not mean-in New Jersey does not mean-that an absolute limit is placed on the agency's return. ”

“ While their fees are unregulated, the private agencies are free to charge those seeking employment enough to cover both the charge for their service and the gratuity paid to the foreman or employer. A Legislature would certainly not be unreasonable in concluding that the fixing of a reasonable maximum fee was the appropriate and only effective method of assuring private agencies fair compensation while preventing them from abuses of this character. ”

“ As I read those decisions, such regulation is within a state's power whenever any combination of circumstances seriously curtails the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a Legislature might reasonably anticipate serious consequences to the community as a whole. ”

“ It is reported that at times of widespread unemployment the private agencies are known to raise their fees out of all proportion to the reasonable value of their services. [10] There is a public interest at such times in bringing about a prompt readjustment of the labor supply to industry's need for labor. The additional barrier to a quick readjustment created by the agencies' raising of their rates affects that interest adversely. ”

“ It is said that if there be abuses in this business, the business may be regulated but not by the fixing of reasonable prices, and that that was decided in Tyson v. Banton, supra. So far as the significant facts in that case are concerned, it bears little resemblance to this one. Ticket brokers and employment brokers are similar in name; in no other respect do they seem alike to me. To overcharge a man for the privilege of hearing the opera is one thing; to control the possibility of his earning a livelihood would appear to be quite another. ”

“ It is of course true that the enactment of a particular type of legislation, even though general, and a widespread and competent opinion that it is wise and necessary, do not extablish its constitutionality. ”

“ Exorbitant fees are taken for merely registering the applicants, no effort whatever being made to find them work. [4] To stimulate the payment of such fees the agencies advertise for classes of laborers for whom no jobs are available. [5] According to the Massachusetts Commission to Investigate Employment Offices, the ordinary forces of competition seem powerless to prevent or remedy this situation, because but little capital is required to open an office, and because the clients of the agencies are constantly new. ”

“ There is ground for the belief that this is a particular danger in New Jersey, for a large proportion of its agencies specialize in employees for hotels and resorts, where the positions are seasonal and temporary. [8] The whole supply of labor must, at the beginning and again at the end of the season, search for new positions at the same time.
Third. Fee-splitting has been a recurrent subject of complaint. It 'is frequently practiced, part of the fee charged to the worker being paid over by the private employment agent to the employer or his foreman. ”

“ The price regulation may embrace businesses 'which, though not public at their inception, may be fairly said to have risen to be such and have become subject in consequence to some government regulation.' Wolff Co. ”

“ The price paid for property or services is only one of the terms in a bargain; the effect on the parties is similar whether the restriction on the power to contract affects the price, or the goods or services sold. Apart from the cases involving the historic public-callings, immemorially subject to the closest regulation, this court has sustained regulations of the price in cases where the Legislature fixed the charges which grain elevators, Brass v. ”

“ At such times, when men need work most badly, the private employment offices put up their fees, and keep the unemployed from going to work until they can pay $2, $3, $5, and even $10 and more for their jobs. ”

“ Chapter 227, p. 822, Laws of New Jersey 1918, being an act to regulate the keeping of employment agencies, requires that every person operating an employment agency as defined by the statute must procure a license from the commissioner of labor. A penalty is imposed for failure to do so. ”

“ This necessity of paying for the privilege of going to work, and paying more the more urgently the job is needed, not only keeps people unnecessarily unemployed, but seems foreign to the spirit of American freedom and opportunity.' Report of Commission on Industrial Relations, 64th Cong. ”

“ Commission to Investigate Employment Offices (1911) p. 15.↑ Statistics of Unemployment and the Work of Employment Offices, U.S. Bureau of Labor Bulletin, No. 109, p. 36.↑ In 1920 30 out of the 92 agencies in the state were of that type. Report of New Jersey Dept. of Labor, 1921, pp. 59, 60. Legislation enacted in New Jersey in 1907, which left the regulation of employment agencies to the municipalities, was found in practice to be ineffective, because of the laxity of local enforcement. Report of New Jersey Commission of Immigration, 1914, pp. ”