Foley, Lewis and Labrecque. The opinion of the court was delivered by Foley, J.A.D.
This matter comes before the court on a petition for a declaratory judgment under R.R. 4:88-10, adjudging as invalid a rule promulgated by the Commissioner of Labor and Industry, pursuant to the Minimum Wage Standards Law, N.J.S. 34:11-34, et seq.
The rule designated Mandatory Order No. 12, adopted November 17, 1960, effective May 17, 1961, fixes the minimum wage standards governing employment of women and minors in beauty culture occupations. It provides:
1. Operators shall be paid not less than $1.25 per hour "during the six months following the date of initial hire in a given establishment," thereafter they are to be paid at the rate of $1.50 per hour..
2. Employees on a Senior Student Permit or Temporary Permit shall be paid not less than $1.25 per hour.
3. Maids, cleaning women, porters, shoe shine boys shall be paid not less than $1.25 per hour.
4. Other employees not specifically provided for shall be paid not less than $1.35 per hour.
5. "The minimum wage to be paid to an employee for any day, or part of a day, in which the employee has been required or authorized to report for work, and has reported for work, shall be not less than four times the employee's regular hourly wage rate."
The order further provides for overtime and furnishing of materials by the employer. It requires that employers keep records; it states that "in no case shall tips or gratuities from patrons be counted as part of the minimum wage or regular wage rate being paid to an employee"; and it sets forth necessary definitions, and provides penalties for non-compliance. This order supersedes mandatory order No. 5 which became effective January 10, 1943 and set a minimum of 40 cents per hour for hourly employees.
R.S. 34:11-39 provides that if "the commissioner on the basis of information acquired by special investigation or otherwise is of the opinion that a substantial number of women or minors in any occupation or occupations are receiving oppressive and unreasonable wages, he shall appoint a wage board to report upon the establishment of minimum fair wage rates for women and minors in such occupation or occupations." Pursuant to this authority the Commissioner appointed a wage board, the organizational meeting of which was held on May 24, 1960. Thereafter, the board held five meetings, the last on July 11, 1960. During its meetings and deliberations the board had available various studies and materials relating to living costs for women workers in the State, wages and hours prevailing in the beauty culture industry, and earnings in other occupations. A public hearing was conducted on June 27, 1960.
Subsequent to its final meeting the board submitted a report and recommendations to the Commissioner. On July 29, 1960 the Commissioner accepted the report and arranged for a public hearing which was held on September 14, 1960. On August 17, 1960 the Commissioner called a special meeting of the board for the purpose of discussing the question of tipping in the industry.
At the public hearing numerous persons testified concerning the recommended minimum wage, variant and conflicting opinions being expressed. On September 23, 1960 the Commissioner specifically approved the recommendations ...