Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This is a proceeding instituted in this court under R.R. 4:88-10 by 64 employers engaged in the laundry, cleaning or dyeing businesses. They seek a declaratory judgment setting aside Minimum Fair Wage Standards Mandatory Order No. 10 of the Commissioner of Labor and Industry, insofar as it relates to overtime wage rates. The order affects only women and minors employed in those businesses.
The petitioners by their stipulation have confined the case to two questions, which may be stated thus: does N.J.S.A. 34:11-47 confer upon the Commissioner of Labor and Industry power to establish overtime rates and also to fix the number of hours per week after which they are to become effective; and if so, has the law set up standards for the guidance of the Commissioner, which will satisfy constitutional requirements.
The questions are novel. In fact there are no reported cases in this State dealing with the Minimum Wage Act, though it was originally adopted in 1933 (L. 1933, c. 152). As to the history of such legislation, see De Vyver, "Regulation of Wages and Hours Prior to 1938," 6 Law and Contemp. Problems 323 (1939); Leiter, "The Principle of Overtime ," 2 Labor L.J. 24 (1951). As to a law fixing the maximum hours of labor for females, see N.J.S.A. 34:2-24; for minors under 18, see N.J.S.A. 34:2-21.3. For a look into the past, see L. 1851, pages 321, 322. As to the validity of the minimum wage laws apart from the question of overtime, see Annotation , 39 A.L.R. 2 d 740.
In the present case the Commissioner appointed a wage board pursuant to N.J.S.A. 34:11-39 and 34:11-40, which ultimately made a report leading to the order mentioned. The report recommended the following minimum fair wage standards:
"1. That the basic Minimum Fair Wage for Women and Minors employed as non-clerical workers in Laundry and Cleaning and Dyeing Occupations be 80 cents per hour for the first four weeks of employment and 85 cents per hour thereafter.
2. That the basic Minimum Hourly Rate for clerical workers employed in Laundry and Cleaning and Dyeing Occupations be 75 cents per hour for the first four weeks of employment, and 80 cents per hour thereafter."
So far as appears in the record before us, the wage board did not pass upon overtime rates; however the statute does not require it to do so. Order No. 10 adopts the report and includes, by way of supplement, the following regulations, which are attacked by this proceeding:
"OVERTIME RATES. Overtime rates mean one and one-half times the employee's regular hourly wage rate which shall be paid to each woman and minor subject to the provisions of this Order for hours worked in excess of forty-eight (48) hours in any work week during the period of time beginning with May 6, 1956 through August 6, 1956; hours worked in excess of forty-four (44) hours in any work week during the period of time beginning with August 7, 1956 through November 7, 1956, and hours worked in excess of forty (40) hours in any work week beginning on or after November 8, 1956. The overtime rates established by this Order shall not apply in the case of any person employed on a weekly, monthly or yearly salary basis, whose salary reduced to a weekly basis is in excess of $60.00 and whose employment is in a bona-fide supervisory or executive capacity.
REGULARLY HOURLY WAGE RATE. The term 'regular hourly wage rate,' as used in this Order, shall mean the amount that the employee is regularly paid for each hour of work. When an employee is paid on a piece work basis or any other basis than an hourly rate the 'regular hourly wage rate' shall be determined by dividing the total of the hours worked during the week into the employee's total earnings exclusive of part time bonuses for the week and exclusive of wages earned at overtime rates as such rates are defined in this Order."
The question as to whether the Commissioner has sufficient power to deal with overtime turns largely on N.J.S.A. 34:11-47:
"Within ten days after the hearing the commissioner shall confer with the director and approve or disapprove the report of the wage board. If the report is disapproved the commissioner may resubmit the matter to the same wage board or to a new wage board. If the report is approved the commissioner shall make a mandatory order which shall define minimum fair wage rates in the occupation or occupations as recommended in the report of the wage board and which shall include such proposed administrative regulations as the commissioner may deem appropriate to supplement the report of the wage board and to safeguard the minimum fair wage standards
established. Such administrative regulations may include among other things, regulations defining and governing learners and apprentices, their rates, number, proportion or length of service, piece rates or their relations to time rates, overtime or part time rates, bonuses or special pay for special or extra work, deductions for board, lodging, apparel or other items or services supplied by the employer, and other special conditions or circumstances; and in view of the diversities and complexities of different occupations and the dangers of evasion and nullification, the commissioner may provide in such regulations without departing from the basic minimum rates recommended by the wage board such modifications or reductions of or addition to such rates in or for such special cases or classes of cases as those herein enumerated as the commissioner may find appropriate to safeguard the basic minimum rates established. Said mandatory order shall take effect upon expiration of one hundred eighty days from the date of the issuance of the order."
An administrative regulation, purporting to effectuate a statute, will not be set aside on the ground that it transgresses the statute, unless the transgression is plain; the presumption is in favor of validity. Grenewicz v. Ligham , 34 N.J. Super. 1, 9 (App. Div. 1955).
But we need not rely upon presumptions. It seems to us beyond question here that this statute gives the Commissioner the power to
" supplement " the report with regulations " defining and governing * * * overtime * * * rates , bonuses or special pay for special or extra work,"
"provide in such regulations without departing from the basic minimum rates recommended by the wage board such * * * addition to such rates in or for such special cases or classes of cases as those herein enumerated as the commissioner may find appropriate to safeguard the basic minimum rates established." (Italics added.)
This last provision seems to state expressly that in any of the enumerated classes of cases, such as overtime, the Commissioner may provide for an addition to the basic rate. Cf. G.O. Miller Telephone Co. v. Minimum Wage Commission , 145 Minn. 262, 177 N.W. 341, 344 (Sup. Ct. 1920), where there was no express power to fix overtime rates or hours of labor, and yet the court held that the mere power
to establish a minimum living wage carried with it the power to establish overtime rates.
The petitioners argue that the phrase, "defining and governing" overtime rates, does not give the Commissioner power to establish overtime rates. We think otherwise. The word "define" in this context means to fix or establish. Boyd Paving & Contracting Co. v. Ward , 85 F. 27, 35 (8 Cir. 1898); Dow v. Gould & Curry Silver Min. Co. , 31 Cal. 629, 639 (Sup. Ct. 1867); State ex rel. Devening v. Bartholomew , 176 Ind. 182, 95 N.E. 417, 419 (Sup. Ct. 1911); Sanders v. Belue , 78 S.C. 171, 58 S.E. 762, 764 (Sup. Ct. 1907); Black's Law Dictionary (4 th ed.); Standard Dictionary; 26 C.J.S., Define, p. 678; cf. Webster's New International Dictionary (2 nd ed.). The word "govern" means to direct and control, rule or regulate. Tucker v. State , 218 Ind. 614, 35 N.E. 2 d 270, 291 (Sup. Ct. 1941); cf. Richmond F. & P.R. Co. v. City of Richmond , 96 U.S. 521, 528, 24 L. Ed. 734, 737 (1878).
Petitioners argue that the power to define and govern overtime rates, does not include the power to fix the number of hours per week after which such rates are to become effective. But we think one thing goes with the other. The authority to fix overtime rates would not mean much if the Commissioner could not fix the point in the work week at which they were to become applicable. Petitioners, it is to be noted, do not challenge the order on the ground that it is unreasonable or unsupported by adequate evidence; for example, they make no claim that the order is unreasonable insofar as it requires overtime rates as to "hours worked in excess of forty (40) hours in any work week beginning on or after November 8, 1956."
If we had any doubt as to whether the statute confers such powers upon the Commissioner, it would be resolved by the interpretation that has been put upon the statute by the Commissioner for 17 years. Minimum wage orders No. 2, 3, 4, 5, 6, 8 and 9, issued by the Commissioner, provide for overtime rates as follows (4 C.C.H., Labor Law Rep., New Jersey , § 44,055):