Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiffs, owners of hotels in the State of New Jersey and employers of women and minors in the operation of restaurants and laundries connected therewith, challenge the validity of two regulations promulgated by the defendant Carl Holderman, Commissioner of Labor and Industry of the State of New Jersey, hereinafter referred to as "Commissioner," under the provisions of the Minimum Fair Wage Standards Act, N.J.S.A. 34:11-34 et seq. , hereinafter referred to as the "Minimum Wage Act."
One proceeding for direct review was instituted in this court by four hotel operators and the New Jersey State Hotel Association pursuant to R.R. 4:88-10. A second proceeding seeking a declaratory judgment was instituted in the Chancery Division by the Atlantic City Hotel Association and 17 operators of hotels in that city, which latter action was transferred to this court and consolidated with the initial proceeding by appropriate order. Four labor unions, representing organized labor in affected occupations, intervened and were admitted as parties-defendant.
The facts are not in dispute; the issues are solely legal. Pursuant to the provisions of the Minimum Wage Act, the Commissioner appointed wage boards for the restaurant and laundry occupations, and following hearings and reports by them he made two orders which are the subject of this litigation:
one, referred to as Mandatory Order No. 9 purports to cover employment of women and minors in hotel restaurants, and the other, Mandatory Order No. 10, pertains to such employees in hotel laundries.
The Minimum Wage Act provides for the establishment of minimum fair wage rates for women and minors employed in an "occupation or occupations," but under the statutory definition employment in a hotel is specifically excluded. N.J.S.A. 34:11-34 reads:
"Definitions * * * 'Occupation' means an industry, trade or business or branch thereof or class of work therein in which women or minors are gainfully employed but shall not include domestic service in the home of the employer or labor on a farm or employment in a hotel."
The Commissioner's Order No. 9 provides as follows:
"Exemptions. Women and minors employed in or by a hotel are exempt from the provisions of this Order, provided, however, that this exemption shall not include any woman or minor employed in a restaurant operated in a hotel catering to non-resident guests. The term non-resident guests herein used means a guest not being furnished with lodging."
Mandatory Order No. 10 directs that:
"Exemptions: Women and minors employed in and by a hotel are exempt from the provisions of this Order; provided, however, that this exemption shall not include women or minors employed by or in a hotel when performing the functions included in the definition of 'Laundry and Cleaning and Dyeing Occupations,' in relation to articles which are not the property of or are not being processed for the exclusive use of the hotel by which the workers are employed."
The plaintiffs contend that the foregoing regulations are invalid being contrary to the statutory exemption of "employment in a hotel." The defendants argue that the regulations are a valid and lawful interpretation of the statute, and, if not, then the statutory exemption is unconstitutional because it discriminates in favor of ...