Adams v. Tanner

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Adams v. Tanner
Seal of the United States Supreme Court.svg
Argued May 7, 1917
Decided June 11, 1917
Full case name Joe Adams, et al., Appts.,
W. V. Tanner, Attorney General of the State of Washington, and George H. Crandall, Prosecuting Attorney of Spokane County, State of Washington.
Citations 244 U.S. 590 (more)
The Washington state law that prohibited employment agencies was unconstitutional, because a ban would breach the principle of due process of law in the deprivation of liberty and property.
Court membership
Case opinions
Majority McReynolds, joined by White, Day, Van Devanter, Pitney
Dissent Brandeis, joined by McKenna, Holmes, Clarke

Adams v. Tanner, 244 U.S. 590 (1917), was a United States Supreme Court case in which the Court held that a Washington state law that prohibited employment agencies was unconstitutional.


Washington state attempted to pass a law, supported by the then Federal Department of Labor, to prohibit private employment agencies charging fees to people seeking work. It read as follows,

The constitutionality of the law was challenged.



Chief Justice White, Justices Day, Van Devanter, Pitney and McReynold held that a ban would breach the principle of due process of law in the deprivation of liberty and property. The ban was arbitrary and oppressive. Mr Justice Reynold said,

"there is nothing inherently immoral or dangerous to public welfare in acting as paid representative of another to find a position in which he can earn an honest living. On the contrary, such service is useful, commendable, and in great demand." (at 593)


Justice Brandeis (with whom Justice Holmes, Clarke and McKenna dissented) laid out in his dissenting judgment why employment agency activities were a legitimate concern. He highlighted sources from US Labor Department giving examples of abuse, attempts in over thirty states to regulate and have free public agencies compete. He stated how all methods short of abolition had ultimately failed (601-9).

In this period, the practice of charging destitute workers upfront fees for finding work was widespread. People might give up their last pennies for the chance of work. Sometimes, agencies made no effort to place the worker, or the work would last a few days and the employer would then split the next fee with the agent to bring in fresh replacements. Justice Brandeis cited from a report to a 1912 Congress Committee.

Mr Justice Holmes and Mr Justice Clarke concurred.


International Labour Organization policy[edit]

Probably inspired by the dissenting judgments in this case, the International Labour Organization's first ever Recommendation took on the views of Justice Brandeis. The Unemployment Recommendation, 1919 (No.1), Art. 1 called for each member to,

"take measures to prohibit the establishment of employment agencies which charge fees or which carry on their business for profit. Where such agencies already exist, it is further recommended that they be permitted to operate only under government licenses, and that all practicable measures be taken to abolish such agencies as soon as possible."

The Unemployment Convention, 1919, Art. 2 instead required the alternative of,

"a system of free public employment agencies under the control of a central authority. Committees, which shall include representatives of employers and workers, shall be appointed to advise on matters concerning the carrying on of these agencies."

In 1933 the Fee-Charging Employment Agencies Convention (No.34) formally called for abolition. The exception was if the agencies were licensed and a fee scale was agreed in advance. In 1949 a new revised Convention (No.96) was produced. This kept the same scheme, but secured an ‘opt out’ (Art.2) for members that did not wish to sign up. Agencies were an increasingly entrenched part of the labor market. The United States did not sign up to the Conventions. The latest Convention, the Private Employment Agencies Convention, 1997 takes a much softer stance and calls merely for regulation.

Supreme Court policy[edit]

In Ribnik v. McBride, 277 U.S. 350 (1928), the Court struck down a similar New Jersey law attempting to regulate agencies, Justices Stone, Brandeis and Holmes dissenting. This is probably no longer good law.

Doubt was placed on the leading dicta of Adams v. Tanner in Olsen v. State of Nebraska, 313 U.S. 236 (1941), and Lincoln Union v. Northwestern Co., 335 U.S. 525, 535 (1949). In the latter, Mr Justice Black said that Adams v. Tanner was part of the "constitutional philosophy" that struck down minimum wages and maximum working hours.

See also[edit]


  1. ^ "An Act to Prohibit the Collection of Fees for the Securing of Employment, or Furnishing Information Leading Thereto, and Fixing a Penalty for Violation Thereof." "Be it enacted by the people of the State of Washington:" "Section 1. The welfare of the State of Washington depends on the welfare of its workers, and demands that they be protected from conditions that result in their being liable to imposition and extortion. The State of Washington therefore, exercising herein police and sovereign power, declares that the system of collecting fees from the workers for furnishing them with employment, or with information leading thereto, results frequently in their becoming the victims of imposition and extortion, and is therefore detrimental to the welfare of the state." "Section 2. It shall be unlawful for any employment agent, his representative, or any other person to demand or receive either directly or indirectly from any person seeking employment, or from any person in his or her behalf, any remuneration or fee whatsoever for furnishing him or her with employment or with information leading thereto." "Section 3. For each and every violation of any of the provisions of this act, the penalty shall be a fine or [of] not more than $100 and imprisonment for not more than thirty days." The Supreme Court of Washington has twice passed upon the scope of the act, holding in Huntsworth v. Tanner, 87 Wash. 670, that it is not applicable to teachers, and in State v. Rossman, 93 Wash. 530, that it is applicable to stenographers and bookkeepers.
  2. ^ See Report of the Washington Bureau of Labor (1915, 1916), pp. 120-121. "The free agencies, we are pleased to be able to say, are growing in popularity, and while they do not advertise their business with the same thrift that the other fellows did, they are coming into general service. There are three services of this kind: the private agency that receives all compensation from employers, either by the month, year, or per the service rendered, the federal agency, and the municipal agency; these latter two have offices in the larger places, and are doing good work, and the service is free to both employee and the employer. In the smaller cities and towns, the federal is the prevailing agency, and the postmaster of the place is usually the local representative."
  3. ^ The evils incident to private employment agencies first arrested public attention in America about 1890. During the fifteen years preceding the enactment of the Washington law, there were repeated investigations, official and unofficial, and there was much discussion and experimentation. See Free Public Employment Offices in the United States; U.S. Bureau of Labor, Bulletin No. 68, p. 1; Statistics of Unemployment and the Work of Employment Offices, U.S. Bureau of Labor Bulletin 109, p. 5; Subject Index of the U.S. Bureau of Labor Statistics, Bulletin No. 174, pp. 85-87; Munro, Bibliography of Municipal government, pp. 379-381.
  4. ^ United States Bureau of Labor Bulletin No. 109, p. 36.
  5. ^ Final Report and Testimony submitted to Congress by the Commission on Industrial Relations created by the Act of August 23, 1912, 64th Congress, 1st sess., Doc. 415, vol. I, pp. 109-111. See also vol. II. pp. 1165-1440.
  6. ^ "It is not necessary here to enter into the relative merits of governmental regulation and governmental operation. Suffice it to say that twenty-four states and the District of Columbia have attempted to regulate private employment agencies, and have made a miserable failure of it. The business lends itself easily to fraud and imposition, and it is far more true of the private agencies than of the public offices that they have been frauds as well as failures." Public Employment Offices -- W. M. Leiserson, 29 Political Science Quarterly (March 1914), p. 36. "The United States possesses at the present time no adequate system, either state or national, for the regulation of private employment agencies, either from the point of view of the content of the laws, affording regulations of the business and restrictions as to how the business shall be carried on, or as to proper methods of enforcement." Labor Laws and Their Enforcement, edited by Susan M. Kingsbury (Boston, 1911) p. 366. See Chapter VI of this work for a study of the regulation of private employment agencies by Mabelle Moses. See also Chapter 663, Laws of 1913, State of Wisconsin.
  7. ^ Proceedings of the Association of Public Employment Offices (September 25, 1914), U.S. Dep. of Labor, Bureau of Labor Statistics, Bulletin 192, p. 61.
  8. ^ Unemployment and Work of Employment Offices, Bulletin of U.S. Bureau of Labor No. 109, pp. 5, 37 (October, 1912).
  9. ^ Made in August 1915, and cited supra, Note 4 Between 1914 and this date, six states had legislated on the subject. See Unemployment Survey, 1914, 1915. 5 American Labor Legislation Review, p. 560.
  10. ^ The fire was so extensive that the Congress appropriated $200,000 for relief of all sufferers. Act of August 1, 1914, c. 223, 38 Stat. 681.
  11. ^ Annual Report of the Secretary of Labor, 1914, pp. 48-55; Monthly Review of the U.S. Bureau of Labor Statistics, July 1915, p. 8; see also Annual Report of the Secretary of Labor, 1915, p. 36; "Interdepartmental cooperation. -- Through the cooperation of the Post Office Department it became possible to bring to the aid of this labor-distribution service some 60,000 post offices, and thereby to create a network of communication between employers needing help without knowing where to get it and workers wanting employment without knowing where to find it. Either employer or workman may obtain at any post office in the United States a blank application supplied by this department, which, after filling out and signing it, he may deposit in the mails anywhere, free of postage. . . . Employment bulletins. -- The bulletins contain a statement of unmatched applications, no matter what part of the country they may come from. It is not expected, of course, that applications for work of a minor character will ordinarily be matched by applications for workers of that kind from distant stations. It is assumed, however, that bulletined applications may possibly be matched through the cooperation of nearby stations within a reasonable radius. The bulletins are also systematically sent to such newspapers as have indicated their desire to receive them for possible publication as news matter of interest to their respective readers."
  12. ^ Labor Laws and their Administration in the Pacific States. United States Department of Labor, Bureau of Labor Bulletin No. 211 (1917), pp. 17, 18.
  13. ^ Washington State Bureau of Labor, Report 1913, 1914, pp. 27, 28.
  14. ^ Washington state Bureau of Labor, Report 1915, 1916, p. 120.
  15. ^ Washington state Bureau of Labor, 1911-1912. Report of Commissioner, p. 16: "It has been demonstrated that state control of employment agencies is the most effective way to properly regulate them. I would earnestly recommend a state law similar to the one in Illinois that went into effect July 1, 1911, and has proven to be the best law for this purpose in this country."
  16. ^ The first free public employment office in the United States was the municipal agency established in Cleveland in 1890. Then followed (in 1893) the Los Angeles office. Bulletin of United States Bureau of Labor No. 68, p. 1 (January 1907).
  17. ^ Washington state Bureau of Labor Report 1913, 1914, p. 291. W. D. Wheaton, Labor Agent. "The complaint against the private office is almost universal. The experience of this office is that private agencies charge all that the traffic will bear and that, in hard times, when work is scarce and the worker poverty-stricken, the fee is placed so high as to be almost prohibitive, and the agencies take longer chances, sometimes sending men on only a rumor, depending on their financial straits to make it impossible to return. The fees charged run from $1 for the poorest job of uncertain duration to as high as 10 percent of the first year's salary in educational lines, and 30 percent of the first month's salary in office or mercantile lines. Most of the agencies catering to the better class of positions charge a registration fee which is worked to the limit -- or rather, without limit. Advertisements for attractive positions are placed with the newspapers, and registration is made of all that apply, irrespective of whether the position has been filled or not, and generally at a fee of $2 or more. This registration fee is always followed by a percentage of the earnings when a position is secured, but only a small proportion of those registering are placed in positions. The average charge per position in all agencies will run high, and yet the applicant cannot have a feeling of security in the position obtained, for the reason that the great majority of private agencies are primarily interested in the fee, and are not as careful in placing applicants as they would be did the possibility of another fee not exist."
  18. ^ United States Bureau of Labor Bulletin No. 109, p. 136. "The extremely low cost of each position filled is noteworthy, as is the large number of positions secured. A total of 37,834 positions were filled in 1906, and in 1909, 38,846. The cost per position was lowest in 1906, only 4.03 cents. Only twice since 1897 has the average cost gone above 6 cents."
  19. ^ See Report of Secretary of Labor, 1914, p. 51.
  20. ^ Aberdeen, Bellingham, Custer, Everett, Friday Harbor, Lynden, Noosack, North Yakima, Port Angeles, Port Townsend, Spokane, Takoma, Walla Walla. Monthly Review of U.S. Labor Statistics, July 1915, p. 9. See Report of Secretary of Labor, 1915, p. 36; 1916, p. 54. Hearings Committee on Labor, on H.R. 5783, to establish a National Employment Bureau. 64th Cong. 1st Session, February 1916, p. 49.
  21. ^ The Unemployment Crisis of 1914, 1915, 5 American Labor Legislation Review, p. 475.
  22. ^ Washington state Bureau of Labor Report, 1913, 1914, pp. 13, 16, 17. Unemployment Survey, 5 American Labor Legislation Review, 482, 483 (1915).
  23. ^ Recent Advances in the Struggle against Unemployment, by Prof. Charles R. Henderson, 2 American Labor Legislation Review, 105, 106 (1911). "The point of starting ameliorative effort is the employment agency or 'labor exchange.'" "When we compare the ordinary employment office with the board of trade for cotton or grain, or with the bankers' clearing house, we begin to realize how belated, rudimentary, and primitive our present labor exchange it. Yet the issues at stake are quite as vital in the case of demand and supply in the labor market as in the stock and grain exchange." A Problem of Industry, 4 American Labor Legislation Review, p. 211: "The labor market is unorganized, resulting in confusion, waste, and loss to employers and employees. It means suffering to individual workers and their families, a lowering of the standard of living, impaired vitality and efficiency, and a tendency for the unemployed to become unemployable, dependent, degraded. In fact, the demoralizing effect of unemployment upon the individual is matched only by its wastefulness to society." The Prevention of Unemployment, 5 American Labor Legislation Review, p. 176: "An essential step toward a solution of the problem of unemployment is the organization of the labor market through a connected network of public employment exchanges. This is vitally important as a matter of business organization, and not of philanthropy. It is of as much importance for the employer to find help rapidly and efficiently as it is for the worker to find work without delay. The necessity of organized markets is recognized in every other field of economic activity, but we have thus far taken only timid and halting steps in the organization of the labor market. The peddling method is still, even in our 'efficient' industrial system, the prevalent method of selling labor. Thus, a purely business transaction is carried on in a most unbusinesslike, not to say medieval, manner." Public Employment Bureaus, Charles B. Barnes, 5 American Labor Legislation Review, p. 195: "Unemployment is no longer intermittent in this country; it has come to be a chronic condition which needs to be dealt with in a regular and systematic manner. The first step in properly dealing with this situation is the establishing of a series of cooperating public employment bureaus." The unemployed in Philadelphia, Department of Public Works (1915) p. 113. What is done for the Unemployed in European Countries, U.S. Bureau of Labor Bulletin, No. 76, pp. 741-934; The British System of Labor Exchanges, U.S. Bureau of Labor Statistics, No. 206.
  24. ^ Washington state Employment Agency Referendum, by W. M. Leiserson, 33 Survey, 87 (October 24, 1914): "Anyone who knows the employment agency business and everyone who has tried earnestly to regulate private agencies will testify to the futility of regulation. But the inherent justice of the proposed Washington act can be shown in a better way. Ask the employment agent to whom he rendered the service, and he will answer 'to employer and to employee.' 'Then why don't you charge the employer?' 'It is impossible. If we depended upon employers for our fees, we would have to go out of business. They simply will not pay.' Every time this question is put to employment agents, the answer is the same: 'We charge the worker because we can get the fee from him and we cannot get it from the employer.' This is the downright wrong against which Washington Initiative No. 8 is directed."
  25. ^ General Discussion on Unemployment, 5 American Labor Legislation Review, p. 451; T. S. McMahon, Univ. of Washington. "The people of the State of Washington are not indifferent to the problem of unemployment, nor do they show any tendency to offer charitable panaceas as a permanent remedy. They trying to work out some constructive policy, and as a preliminary step have made it illegal for employment offices to charge fees for jobs. A bill will be presented to the next legislature for the establishment of a network of public employment offices all over the state. This will make possible the complete organization of the labor market, which we hope is the first step toward the organization of industry itself. The aggressive attitude of the leaders among the workers has impressed upon the mind of the people the fact that the problem will have to be met in another way than by providing food and clothing for a period of distress such as we are passing through at the present time. I believe that this attitude on the part of the working people, which is characteristically western, will do more towards the solution of this problem than perhaps we, who discuss it in a theoretical way, can accomplish. They do have some plan of action, and some definite program. Either we shall have to work out some program of ultimate solution of unemployment or we will have to accept the solution they are offering us. The one they are offering us is socialism."

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