shall she be employed in any place detrimental to her morals, her health, or her potential capacity for motherhood."

In June or July, 1937, a factory inspector employed by the Department of Labor and Industry called upon the superintendent of the paint shop of the Oldsmobile Motor Works Division of General Motors Corporation in Lansing and demanded that the superintendent pay women employees the difference between what had been paid to men employed in the paint shop and that paid women, giving him until noon to make the payments and threatening that failure to pay would mean action, presumably under the above section 556 of Act No. 328. This was reported by the superintendent to his superior.

On March 8, 1938, the Attorney General of Michigan in an opinion had upheld the Act as constitutional. April 7, 1938, a suit was started against plaintiff in the instant case by a woman employee, Florence St. John, who sued for the unpaid portion of back wages both in her own right and as assignee of other women employees. This suit was removed by defendant to the Federal Court and is still pending. September 27, 1939, the plaintiff corporation filed its bill herein for an injunction against enforcement of the quoted act, asserting it is unconstitutional as being in violation of Art. 2, § 16 of the Michigan Constitution and § 1 of the 14th Amendment of the United States Constitution, arbitrary, uncertain, confiscatory, and discriminatory. A declaratory decree is also sought. The Attorney General, the Prosecuting Attorney, and the Commissioners of Labor and Industry for the state of Michigan are made defendants. These defendants appeared and made a motion to dismiss the bill of complaint. Among the grounds urged for dismissal are the following: That the bill of complaint states no cause of action against defendants; that it seeks to restrain prosecution of criminal suits; that it seeks to restrain defendant public officials from performing their official duties; that complainant has a complete and adequate remedy at law; and that the court of equity is without jurisdiction. Upon hearing in the circuit court the motion to dismiss was granted and plaintiff has appealed.

In this record there is no affirmative countershowing as against the allegations contained in plaintiff's bill of complaint. It is elementary that on a motion to dismiss all facts well pleaded must be accepted as true. In the bill it is alleged that plaintiff fears and believes and has good reason to fear and believe that the defendants will attempt to compel plaintiff to comply with the pertinent provisions of Act 328 of the Pub. Acts of 1931 and that defendants will attempt to recover from plaintiff fines, penalties, and forfeitures unless defendants are enjoined from so doing; and further: "That any effort to enforce said Section 556 or to collect fines, penalties, and forfeitures in accordance with the provisions of said section * * * would result in a multiplicity of suits and actions against the plaintiff, and would cause great and irreparable damage to the plaintiff in an amount of more than one thousand dollars * * * ""

A fair consideration of the bill of complaint discloses that plaintiff is confronted with numerous threatened suits, some civil and some criminal. As to threatened civil suits it is obvious that with the exception of plaintiff herein the parties who might be interested in such suits are not before the court in the instant case; and since it is not essential to decision herein, we disregrad plaintiff's claim of threatened multiplicity of civil suits.

But plaintiff has alleged in its bill, and it must be accepted as true on this motion to dismiss, that it is threatened by defendants with criminal prosecutions which will result in great and irreparable damage; and the question at once arises whether this gives the court in equity jurisdiction. We think it does, and we have so held in former cases. (Michigan Salt Works v. Baird, 173 Mich. 655; Lewis v. State Board of Dentistry, 277 Mich. 334. See also Ex parte Young, 209 U. S. 123, 52 L. Ed. 714.) Since the trial court had jurisdiction on the ground of granting injunctive relief against threatened criminal prosecutions of such scope and in such numbers as would constitute great and irreparable injury, it also had jurisdiction to pass upon the major question, i. e., the constitutionality of the quoted statute. If it is constitutional the circuit judge's dismissal of plaintiff's bill of complaint should be affirmed, but if it is unconstitutional his ruling should be reversed. As above noted, the plaintiff and appellant contends that the quoted statute is unconstitutional for the following reasons:

1. It is uncertain.

2. It is arbitrary.

3. It is confiscatory.

4. It is discriminatory.

5. It denies equal protection of the laws.

The chief contention on which the claim that the statute is unconstitutional is based, is that it is so uncertain and ambiguous that its attempted enforcement would be a denial of due process of law. Objection is made specifically to the use of the words "similarly" and "formerly" in the statute which we requote in part:

66

'Any employer * * * who shall pay any female engaged in the manufacture or production of any article of like value, workmanship, and production a less wage, by time or piece work, than is being paid to males similarly employed in such manufacture, production, or in any employment formerly performed by males, shall be guilty of a misdemeanor * * * ""

A reading of the statute is convincing that it sets out only one offense and that the words "or who shall pay any female engaged in manufacture or production of any article,” etc., are only definitive of what constitutes discrimination in the payment of wages. The first objection is that the phrase "males similarly employed" is indefinite. We do not think so. The word "similarly" has a definite meaning and as used in this statute means substantially alike. This phrase simply means that the employer shall not, because of her sex only, pay a woman employee less than it pays a man employee for doing work of substantially the same character, quality, and quantity. The standard so set is clear and unambiguous.

The second objection in support of appellant's claim of uncertainty relates to the words "or in any employment formerly performed by males." There is no allegation in the bill of complaint that plaintiff or any other employer is at present employing only women in work formerly performed by men. Of the contrary in its bill of complaint plaintiff alleges that at present and for more than 10 years last past it has employed both men and women in its factory. As to plaintiff and others like situated, use of the quoted phrase does not inject any uncertainty into the statute. It is a well-established rule of constitutional law that one who would strike down a statute as unconstitutional "must bring himself by proper averments and showing within the class as to whom the act thus attacked is unconstitutional." (Southern Railway Co. v. King, 217 U. S. 524, 534, 54 L. Ed. 868. See also: 11 Am. Jur., Const. Law, Sec. 111; Premier-Pabst Sales Co. v. Grosscup, 298, U. S. 226, 80 L. Ed. 1155; Stewart and Co. v. Rivara, 274 U. S. 614, 71 L. Ed. 1234; Gorieb v. Fox, 274 U. S. 603, 71 L. Ed. 1228.)

The claim that the statute is arbitrary and confiscatory is unsupported either by a consideration of the effect of the statute or of the allegations in the bill of complaint. There is nothing arbitrary about the statute on its face and there is no allegation of a state of facts which would make it arbitrary. The statute seeks to prevent the exploitation of women workers and adopts a reasonable means to do so. Nor is the statute confiscatory. There is no allegation in the bill of complaint that paying women workers the same wages that men receive for the same service will work confiscation of plaintiff's property; nor are any facts alleged which might lead to that conclusion.

Plaintiff further claims that the statute is discriminatory and denies the equal protection of the laws, first, as to female employees, and, second, as to employers. As to any discrimination between or against female employees, plaintiff not being a member of the class allegedly injured cannot be heard to complain (Southern Railway Co. v. King, supra; Heald v. District of Columbia, 259 U. S. 114, 66 L. Ed. 852; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. 1155). Plaintiff, however, further contends that there is a denial of equal protection of the laws and discrimination in making the law applicable only eo employers engaged "in the manufacture or production of any article", and not to mercantile employment, etc. The evil sought to be eradicated is discrimination against women, and plaintiff cannot complain merely because the legislature attempred to remedy only a part of the problem rather than the entire situation. Plaintiff's complaint on this score is, in reality, that the statute is void because it is not broad enough (Rosenthal v. New York, 226 U. S. 260, 57 L. Ed. 212). The legislature has the right to remedy the evil to the extent it deems necessary and advisable and it is not restricted to a complete remedy or none (West Coast Hotel Co. v. Parrish, 300 U. S. 379, 81 L. Ed. 703). The legislature need not cover the whole field but may within reason select one particular portion in which to remedy evils. It is a matter of common knowledge that there are great numbers of women employed in manufacturing and that many employers pay their women employees less than they pay their men employees for identical work. The classification made both as to employees and employers in seeking to remedy this situation is not so unreasonable as to be discriminatory or such as effects a denial of equal protection of the laws (Carmichael v. Southern Coal and Coke Co., 301 U. S. 495, 81 L. Ed. 1245).

Plaintiff alleges that employers in the same locality may be required to pay different wages to women employees for the same work while new competitors who have never employed males may not be subject to the law at all. As to this hypothetical objection it may be noted the differences, if any, will not be created by a discrimination or inequality in the law, but by the fact that the law operating in different circumstances in a uniform manner will necessarily give different results. The law applies a uniform standard to all employers subject to its provisions. The law does not endeavor to set the same wages for all women employees, but rather it seeks to provide the same wage conditions for women as for men, and necessarily the differences in pay of men will be reflected in the wage scale for women. As to new competitors who may employ only women, whether there will or can ever be such employers is purely conjectural. There is no allegation that there are such employers. The court will not go out of its way to test the operation of a law under every conceivable set of circumstances. The court can only determine the validity of an act in the light of the facts before it. stitutional questions are not to be dealt with in the abstract. (Bandini Petroleum Co. et al. v. Superior Ct., 284 U. S. 8, 76 L. Ed. 136; 11 Am. Jur. 753, Const. Law, sec. 111, and cases cited in note 16.)

Con

On the factual background presented by this record the quoted statute must be held constitutional as against any objection urged by appellant. Since the statutory provision is valid the bill of complaint does not state a cause of action entitling appellant to any equitable relief; and therefore the decretal order of the circuit judge dismissing the bill of complaint is affirmed. The controversy presented a question of public moment and no costs are awarded.

Bushnell, C. J., and Sharpe, Chandler, McAllister, Wiest, and Butzel, J.J.,

concur.

The late Justice Potter took no part in this decision.

Mr. SCHWELLENBACH. I Would like also to insert in the record the decision of the judge of the Ingham County Circuit Court in the case of Florence St. John v. General Motors Corp.

(The court decision referred to above is as follows:)

State of Michigan. The Circuit Court for the County of Ingham. Florence St. John, Plaintiff v. General Motors Corporation, a Delaware Corporation, Defendant. May 29, 1942

OPINION OF THE COURT

The trial of this case occupied some six weeks time, during which a record of some four thousand pages was made. It thus becomes immediately apparent that time will not permit, and neither should an opinion be attempted, in which a discussion of the testimony and questions is indulged in detail. The opinion of this court will therefore be confined to a discussion of only such matters as are necessary to an interpretation of the record and my conclusions as to the contentions of the parties and the law applicable to the facts.

Plaintiff brings suit in her own behalf and as assignee of twenty-eight other women, all former employees of Olds Motor Works Division of defendant, General Motors Corporation. Plaintiff claims that she and these other women performed work in the Oldsmobile factory over a period of years which was substantially like work performed by males. She claims that the women were paid less wages than were paid to men similarly employed, in violation of Section 556 of the Michigan Penal Code, and that she is entitled to recover at law such difference in wages. These contentions are all denied by defendant corporation.

In considering this matter the trained legal mind, and that of the layman accustomed to the transaction of business, for that matter, is apt to approach the same at the outset with the concept that we are here confronted with a contractual question, in that there was a contract for hire, under the terms of which both the employer and the employee were operating, and that therefore the terms of employment should be controlled by said contract and that there should be no deviation from the same. I am not unmindful of this first appeal or impression as one enters upon the consideration of the case, but the facts permit of no such construction. In other words, it cannot be said as a matter of law, regardless of one's personal viewpoint of the question here involved, that both the employer and employee entered upon a contract of hire for wages which were substantial and adequate and that the employee must therefore, even though dissatisfied, continue upon the terms of said employment or abandon the same. The reason for this is obvious, in that we are here confronted by a statute, the terms of which are mandatory, and a consideration of which and its application to the facts in

issue, must be confined solely to an interpretation and construction of the facts within the meaning and language of that statute.

The statute referred to was first enacted as Act 329 of the Public Acts of 1919. It was re-enacted in 1931 as Section 556 of Act 328, which reads as follows: "SEC. 556. Any employer of labor in this State, employing both males and females in the manufacture or production of any article, who shall discriminate in any way in the payment of wages as between sexes or who shall pay any female engaged in the manufacture or production of any article of like value, workmanship and production a less wage, by time or piece work, than is being paid to males similarly employed in such manufacture, production or in any employment formerly performed by males, shall be guilty of a misdemeanor; Provided, however, that no female shall be given any task, disproportionate to her strength, nor shall she be employed in any place detrimental to her morals, her health, or her potential capacity for motherhood."

This statutory provision was considered and construed by the Supreme Court in General Motors Corporation v. Attorney General 294 Mich. 558. Defendant claims here that the statute is uncertain, arbitrary, and discriminatory. Any discussion of that contention is unnecessary, since the question has already been determined adversely to said contention.

It is also claimed by the defendant that the statute cannot be reconciled with the provisions of the National Labor Relations Act, the so-called Wagner Act. I am unable to perceive any conflict between the two, and am convinced that Section 556 is still in force and effect. In any event, the Wagner Act was not enacted until after the commencement of the period covered by this suit. Further, the testimony of defense witnesses shows that any bargaining over rates of pay which may have taken place in the Olds Plant prior to commencement of suit was not held under or in pursuance of the provisions of the Wagner Act. Does plaintiff have a right of action?

The defendant points out that the statute is penal in nature, does not expressly confer a civil right of action upon an individual offended by its violation, and claims in effect that the only remedy is by criminal prosecution.

The statute, as pointed out by our Supreme Court, "seeks to prevent the exploitation of women workers." It was obviously intended by the legislature for the benefit or protection of a certain group or class, namely, females "engaged in the manufacture or production of any article.' The right of individual members of such class or group to sue for damages occasioned by breach of a duty imposed by statute arises out of the common law. Where one of a class is damaged by the violation of a penal statute enacted for the protection or benefit of that class, such an individual has a right to sue, even though such right is not expressly conferred by the statute. The statute creates a duty, the common law provides the civil remedy for the breach of such duty:

"Except where a penal statute is intended merely for the protection of the public, a private right of action arises for the injury sustained by a breach of such statute, by any person the statute is designed to protect." 1 Corpus Juris Secundum 996.

The common law rule has been frequently recognized and applied in this state (Taylor v. Railroad Co., 45 Mich. 74; Sterling v. Union Carbide Co., 142 Mich. 284; Ferguson v. Gies, 82 Mich. 358. Bolden v. Grand Rapids Operating Co., 239 Mich. 318).

Did plaintiff and her assignors perform work similar to that performed by men, within the meaning of the statute?

Again the decision of the Supreme Court first above referred to is helpful. The Court said:

"The word 'similarly' has a definite meaning and as used in this statute means substantially alike. This phrase means simply that the employer shall not, because of her sex, only pay a woman employee less than it pays a male employee for doing work of substantially the same character, quality and quantity.'

Four of these women worked in the paint shop. Three of them were on inspection work. Most of them were employed in department 7E F3, called the smallpress room, which was a subdivision of department 7, the sheet metal department. There is substantial testimony that the work of these women was equal in quality to that of the men. There is no evidence to the contrary. In fact, a disinterested witness, Mary O'Berry, furnished evidence that the women in the small-press room did better work than did the men. And another disinterested witness, Herbert Holmes, who was still in defendant's employ, at the time of the trial, stated that the women on inspection did better work than he himself could do. As to the quantity of work done by these women as compared with men, the

record shows that each machine in the small-press room had fastened to it a card or tag, showing the quota of production set by the management. Each worker at that particular machine was expected to turn out and produce a specific number of parts an hour. This required quota was the same, whether the worker at that machine was male or female. The record is barren of any evidence that the women in the small-press room did not get out the amount of production required, or that those on inspection, or in the paint shop, did not do their full share.

Defendant contends, however, that men and women did not do work substantially alike in character. This obviously is the major issue in this case, and for the defendant to concede that the work was substantially alike in character would be to admit liability. The question here presented is one of fact and law. That a situation where the work was admittedly identical would involve no disputed question of fact, and would plainly come within the purview of the statute and constitute liability on the part of the employer, is self-evident. Our court, as I have already pointed out, has held that the operation of the act is not restricted to any such narrow construction. To hold otherwise would in fact nullify any useful purpose that it might serve, in that it would deprive it or make it impossible of any practical working application and thus defeat the very purpose for which it was enacted.

Much effort was devoted on the part of the defendant to the production of testimony, the effect of which it is claimed establishes the fact that there were certain practices, requirements, and conditions present in the employment of, or work done by the women, which was so substantially or naterially different from the work done by the men as to preclude recovery under the statute. The testimony offered by defendant on this particular phase of the case, together with the entire record, has received the most painstaking consideration, as a result of which I am brought to the conclusion that any differentiation urged as between the employment of men and women upon the record as made exists only in theory, rather than in fact; in form rather than in substance.

Each

Concerning the women who did inspection work, it appears that the job of inspecting a piston or connecting rod, or similar piece or part, was ordinarily performed by a team of workers, consisting of both men and women. inspector did not do all the work on a certain part, but one person would check for one detail and would pass the part on to another who would apply another test, and so on until inspection was complete. As a means of relieving fatigue the inspectors would shift about from time to time, so that in the course of the working shift an individual inspector might perform most, if not all, of the various inspection jobs. If this practice was not ordered by the management, it could not fail of notice and tacit approval.

In the paint shop during the period of this lawsuit the women here concerned were engaged for the most part with work on automobile hoods, known as "touchup and stripe." In the beginning only women were employed at this job, but eventually some men were introduced to it and were taught by the women. The hoods came along on a moving conveyor and the workman, whether man or woman, applied the stripe of paint, or "touched-up" spots where the paint had been damaged in the preceding polishing operation. This work on the conveyor line was the regular job, although occasionally some hoods, called "cripples" were lifted off the line by a male helper and placed on stationary jacks for further attention. The work of the men and women was alike, in fact, identical.

Turning now to the small-press room, department 7E F3, we find both men and women operating punch presses and other machines. The women were required to wear overalls like the men, and the very fact of the establishment of this department tends to indicate some resemblance in the work carried on within it. The record shows that the operators did not work permanently at any one machine, or kind of machine, but men and women were shifted about as need required. By changing the dies a punchpress can be used to produce a variety of automotive parts, but the operation is essentially the same. The workers, men and women, who were directly engaged in the fabrication of materials or parts are referred to as being "on production." Besides plaintiff and her assignors and various witnesses in Oldsmobile employ who testified for the defendant, there were a number of others who gave evidence concerning the character of work in the smallpress room. Forrest Brown, an inspector for the Michigan Department of Labor and Industry, made an official investigation in 1937. He testified that all of the women involved in this suit were doing work similar to that performed by men, and for less pay. He further testified that in the press room women were loading stock, trucking it around, operating machines, and dumping stock pans, just as the men were doing. After hearing these witnesses, and a careful consideration of