THEORY OF COMMISSIONER Plaintiff urges upon the Court a construction of the statute (for accuracy of his contention I quote from plaintiff's Brief after Trial, page 21) as follows: 66* * * The statute, augmented by the interpretation regulations and the decision of the Industrial Commissioner, clearly requires that equal wages be paid regardless of sex where "(a) the workers perform the same general type of work; "(b) where comparable skill is required; "(c) where the work results in approximately equal productivity; and again (I quote from pages 26 to 27 of plaintiff's Brief after Trial) as follows: 16* * * The Legislature, by enacting the Equal Pay Law, intended to change the preexisting conditions under which women doing equal or comparable work with men, were paid less money and it was the purpose of our lawmakers to bring about, through the medium of the Equal Pay Law, a change in conditions so that women doing equal or comparable work with men, would not be discriminated against in the rate of pay and to assure them equal wages for equal work. This mandate of the Legislature should be followed by the Court in the instant case.” INTERPRETIVE BULLETIN * Upon trial, the plaintiff offered into evidence Interpretive Bulletin No. 1, "New York State's Equal Pay Law," promulgated July 1, 1944, by the Industrial Commissioner. Said Interpretive Bulletin is claimed to have the force and effect of a rule or regulation under Section 23, Labor Law, which empowers the Commissioner to "make, amend, and repeal regulations * * for the enforcement of the Labor Law." Judicial notice by this Court may be taken of it, pursuant to Section 33-a, C. P. A. Wherefore the Court now overrules the objection, and the same is received into evidence as Plaintiff's Exhibit I. The Opinion and Decision of the Industrial Commissioner after a departmental hearing of the original complaint in this matter was heretofore admitted into evidence as "a document" under Section 344-a (C), C. P. A., and is Exhibit III upon this trial. The weight to be given to these exhibits as matters judicially noticed rests in the Court's discretion. Section 129, McKinney's Statute Law affords a guide. It should be pointed out that there has been no long continued course of action by the Industrial Commissioner in respect of this newly created statute. (Section 199-a, Labor Law.) OPINION OF COMMISSIONER In his Opinion and Decision (Exhibit III), the Industrial Commissioner states: 16* * * Length of service, quality of work, and quantity of work are factors which may legitimately enter into the determination of wages. Equal pay for men and women in the same general employment is not provided for by the statute. Reasonable classification and grading of employees, which is not discriminatory against women because of sex, is not prescribed, and an employee may not assert a grievance because of it." [Italics supplied.] With so much of the Opinion quoted I am in accord. The plaintiff appears to be taking an inconsistent position now in asking for the construction of the statute from the position above quoted in his Opinion and Decision. In construing a statute words are not to be read into a statute to affect a meaning which the language of the statute omits. The Legislature could have been more specific in defining other acts or offenses within the purview of Section 199-a, Labor Law. The plaintiff places much stress upon the Equal Pay Law of the State of Michigan, and even states that it is similar to the New York State law, and within the scope of his argument would urge its application as a precedent to guide this Court in the construction of the New York statute. The Michigan statute, Act No. 328, Section 556, Public Acts 1931, states: "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 piecework, 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. The Michigan Supreme Court in the case of General Motors Corporation, Appellant, against Thomas Read, Attorney General, et al. (294 Mich. 558) upheld the constitutionality of the Act, and its opinion, in part, declared: "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 the manufacture or production of any article,' etc., are only definitive of what constitutes discrimination in the payment of wages. * * *"" MEANING OF ACT This I The Michigan statute in my opinion is dissimilar to the New York statute, and there is no parallel in language or objectives between the two statutes. Throughout the plaintiff refers to our statute as "Equal Pay Law." consider a misnomer. In my opinion the construction of our statute, as contended for by the plaintiff, is an erroneous construction. Our statute forbids discrimination because of sex. It does not command or require equal pay regardless of sex. ACT NOT VIOLATED In the case at bar I find that there are differences in the work of defendant's employees; that the differences are neither insignificant nor inconsequential; and that the differences in their work do constitute a substantial factor other than sex to justify a differential in the wages paid. BURDEN OF PROOF For the failure of the plaintiff to have sustained the burden of proof that there was discrimination because of sex, the complaint must be dismissed. Mr. SCHWELLENBACH. One case, I understand was approved or affirmed by the Michigan State Supreme Court. I have not been able to get that, but if I can get it within a reasonable time I would like to put that in, too. I have not read it, and I do not know what it contains, but I will just put it in for the purpose of the record, here. Mr. MCCONNELL. You will put it in the record? Mr. SCHWELLENBACH. If I can get it within a reasonable time. Mr. McCONNELL. If you can obtain them and there are no objections, it is so ordered; they will be put in the record. Mr. MacKinnon, are you finished? Mr. MACKINNON. I am finished. (The decision in the case above referred to is as follows:) State of Michigan, Supreme Court. General Motors Corporation, a Delaware Corporation, Plaintiff and Appellant, v. Thomas Read, Attorney General of the State of Michigan; Richard B. Foster, Prosecuting Attorney for the County of Ingham, State of Michigan; and Charles H. Mahoney, James F. Shepherd, Isabel Larwill, Daniel Knaggs and John H. Thorpe, Commissioners of Labor in and for the State of Michigan, Defendants and Appellees (294 Mich. 558; 293 N. W. 751 (1940). Sept. 6, 1940 NORTH, J. BEFORE THE ENTIRE BENCH General Motors Corporation, a Delaware corporation, duly authorized to do business in Michigan, is engaged in the business of manufacturing and selling automobiles and parts in Lansing, Michigan. In its business the plaintiff corporation employs both men and women in various branches of its work, maintaining a wage scale, varying and graduated for both women and men, and said to be based upon the skill, experience, capacity, and ability of its employees. In 1931 the legislature of Michigan enacted Act No. 328, §556 of the Pub. Acts of Michigan, which was a reenactment of Act No. 239 of the Pub. Acts of 1919. This act creates a misdemeanor punishable by fine or imprisonment or both; and the pertinent portion reads: "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 piecework, 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." 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: * * * "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 |