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U.S. Supreme Court
Lochner v. People of State of New York,
198 U.S. 45 (1905)
JOSEPH LOCHNER, Plaintiff. in Error, v. PEOPLE OF THE STATE OF NEW YORK.
No. 292.
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Argued February 23, 24, 1905.
Decided April 17, 1905.
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE
and MR. JUSTICE DAY concurred, dissenting.
MR. JUSTICE HOLMES dissenting.
MR. JUSTICE PECKHAM, making the statement of the facts, then delivering
the opinion of the court. |
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Associate Justice
Rufus W. Peckham
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The general right to make a contract in relation to his business is
part of the liberty protected by the Fourteenth Amendment, and this
includes the right to purchase and sell labor, except as controlled
by the State in the legitimate exercise of its police power.
Liberty of contract relating to labor includes both parties to it; the
one has as much right to purchase as the other to sell labor.
There is no reasonable ground, on the score of health, for interfering
with the liberty of the person or the right of free contract, by determining
the hours of labor, in the occupation of a baker. Nor can a law limiting
such hours be justified as a health law to safeguard the public health,
or the health of the individuals following that occupation.
Section 110 of the labor law of the State of New York, providing that
no employees shall be required or permitted to work in bakeries more
than sixty hours in a week, or ten hours a day, is not a legitimate
exercise of the police power of the State, but an unreasonable, unnecessary
and arbitrary interference with the right and liberty of the individual
to contract, in relation to labor, and as such it is in conflict with,
and void under, the Federal Constitution.
THIS is a writ of error to the County Court of Oneida County, in the
State of New York (to which court the record had been remitted), to
review the judgment of the Court of Appeals of that State, affirming
the judgment of the Supreme Court, which itself affirmed the judgment
of the County Court, convicting the defendant of a misdemeanor on an
indictment under a statute of that State, known, by its short title,
as the labor law. The section of the statute under which the indictment
was found is section 110, and is reproduced in the margin, 1 (together
with the other sections of the labor law upon the subject of bakeries,
being sections 111 to 115, both inclusive).
The indictment averred that the defendant "wrongfully and unlawfully
required and permitted an employee working for him in his biscuit, bread
and cake bakery and confectionery establishment, at the city of Utica,
in this county, to work more than sixty hours in one week," after
having been theretofore convicted of a violation of the same act; and
therefore, as averred, he committed the crime or misdemeanor, second
offense. The plaintiff in error demurred to the indictment on several
grounds, one of which was that the facts stated did not constitute a
crime. The demurrer was overruled, and the plaintiff in error having
refused to plead further, a plea of not guilty was entered by order
of the court and the trial commenced, and he was convicted of misdemeanor,
second offense, as indicted, and sentenced to pay a fine of $ 50 and
to stand committed until paid, not to exceed fifty days in the Oneida
County jail. A certificate of reasonable doubt was granted by the county
judge of Oneida County, whereon an appeal was taken to the Appellate
Division of the Supreme Court, Fourth Department, where the judgment
of conviction was affirmed. 73 App. Div. N.Y. 120. A further appeal
was then taken to the Court of Appeals, where the judgment of conviction
was again affirmed. 177 N.Y. 145.
COUNSEL: Mr. Frank Harvey Field and Mr. Henry Weissmann for plaintiff
in error:
The statute in question denies to certain persons in the baking trade
the equal protection of the laws.
The legislation must affect equally all persons engaged in the business
of baking in order to conform to this provision of the Fourteenth Amendment.
It really affects but a portion of the baking trade, namely, employees"in
a biscuit, bread or cake bakery, or confectionery establishment."
Connolly v. Union Sewer Pipe Co., 184 U.S. 540; Ex parte Westerfield,
55 California, 550.
The Constitution itself says that no State shall "deny to any person
within its jurisdiction the equal protection of the laws." It does
not say, "no considerable number of persons," but "any
person." And this plaintiff in error may appeal with confidence
to the supreme law of the land against this law which singles out a
certain number of men employing bakers, and permits all others similarly
situated, including many who are competitors in business, to work their
employees as long as they choose. Freund's Police Power, 633; Missouri
v. Lewis, 101 U.S. 31; Barbier v. Connolly, 113 U.S. 27; Colling v.
Goddard, 183 U.S. 79, 92; Yick Wo v. Hopkins, 118 U.S. 356; Cooley's
Const. Lim. 282; Tin Sing v. Washburn, 20 California, 534.
Classification must be based upon some difference bearing a reasonable
and just relation to the act in respect to which the classification
is attempted, but no mere arbitrary selection can ever be justified
by calling it classification. Santa Fe R. R. Co. v. Matthews, 174 U.S.
105. Class legislation of the character of the act in issue enacted
by the States which discriminates in favor of one person or set of persons
and against another or others is forbidden by the Fourteenth Amendment.
Gulf C. & S. F. R. Co. v. Ellis, 165 U.S. 150; Cotting v. Kansas
City S. Y. Co., 183 U.S. 79; Connolly v. U. S. P. Co., 184 U.S. 540;
People v. Orange County Road Co., 175 N. Y. 87, 90.
The equal protection of the laws is a pledge of the protection of equal
laws. Yick Wo v. Hopkins, 118 U.S. 356, 369; Gibbons v. Ogden, 9 Wheat.
1, 210; Sinnot v. Davenport, 22 How. 227, 243; Butchers' Union Co. v.
Crescent City Co., 111 U.S. 746; M., K. & T. R. Co. v. Haber, 169
U.S. 613, 626.
The statute in question is not a reasonable exercise of the police power
either from the standpoint of the trade itself or from the standpoint
of the decisions interpreting the exercise of the police power in connection
with the Fourteenth Amendment.
As to the trade there is no danger to the employee in a first-class
bakery and so far as unsanitary conditions are concerned the employee
is protected by other sections of the law. Ex parte Westerfield, 55
California, 550; 2 Buck's Hygiene and Public Health, 10; The Lancet,
vol. 2, 1895, 298; Special Sanitary Report of The Lancet on Bakeries,
1889, p. 1140; and 1890, pp. 42, 208, 719; Reference Handbook of Medical
Sciences, vol. 6, p. 317; The Practitioner, vol. 53, 1894, p. 387; Arlidge
on Diseases of Occupations; Dragle in 45th Annual Report, Register General.
The law is not a proper exercise of the police power. 4 Black. 162;
Jeremey Bentham, Edinburgh ed., part IX, 157; Cooley Const. Lim. 572;
2 Kent's Com. 340; Slaughter House Case, 16 Wall. 36; Re Jacobs, 98
N. Y. 98; Tiedemann Police Power, § 178; Freund Police Power, 534.
Where the ostensible object of an enactment is to secure the public
comfort, welfare or safety, it must appear to be adapted to that end,
it cannot invade the rights of persons and property under the guise
of the police regulation, when it is not such in fact. Eden v. People,
161 Illinois, 296; Ex parte Jentsch, 112 California, 468; Ritchie v.
People, 155 Illinois, 98; Lake View v. Rose Hill Cemetery Co., 70 Illinois,
191; People v. Marx, 99 N. Y. 377, 387; People v. Gillson, 109 N. Y.
389, 399; People v. Bresecker, 169 N. Y. 53; People v. Hawkins, 157
N. Y. 1; People v. Beattie, 96 App. Div. N. Y. 383, 390, 399. For other
decisions of the Court of Appeals, interpreting the labor law, see People
ex rel. v. Coler, 166 N. Y. 1; Ryan v. City of New York, 177 N. Y. 271;
People ex rel. v. Grout, 179 N. Y. 417.
As to fundamental right to pursue occupations, see decisions of this
court in cases cited supra and Calder v. Bull, 3 Dall. 386; Munn v.
Illinois, 94 U.S. 79; United States v. Martin, 94 U.S. 400. And see
People v. Phyfe, 136 N. Y. 554; Henderson v. Mayor, 92 U.S. 259.
In the other state courts legislation of the kind in issue has been
almost uniformly declared invalid. Sawyer v. Davis, 136 Massachusetts,
239, 243; Eden v. People, 161 Illinois, 296; Ritchie v. People, 155
Illinois, 98; Ex parte Kuback, 85 California, 274; Godcharles v. Wigeman,
113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179; Leep v. St. Louis
R. R. Co., 58 Arkansas, 407; Low v. Rees Pub. Co., 41 Nebraska, 127.
The statute in question was never intended as a health provision but
was purely a labor law. This is indicated by the facts leading up to
the adoption of this statute by the New York legislature. For acts of
this nature generally, see English Bakehouse Acts of 1863, 26, 27 Vict.,
ch. 40; English Factory Act of 1883; Baker's Journal, New York City,
May 8, 1895; Report New York State Bureau Labor Statistics, 1892, vol.
3; Ch. 548, New York Laws of 1895; Ch. 672, 1896; Ch. 415, § 5,
Laws of 1897; New Jersey act of April, 1896; Bakeshop Act of Ontario,
April 7, 1896; Acts of Maryland, and Massachusetts, passed in 1897.
Mr. Julius M. Mayer, Attorney General of the State of New York, for
defendant in error:
The New York statute under consideration involves an exercise of the
police power of the State. The burden of demonstrating that this statute
is repugnant to the provisions of the Federal Constitution is upon the
plaintiff in error, and he must show that there was no basis upon which
the state court could rest its conclusion that the legislation in question
was a proper exercise of police power. Holden v. Hardy, 169 U.S. 366.
The conditions existing in the State of New York, which may be considered
as the occasion for the enactment of the statute under consideration,
show that it was a proper exercise of the police power of the State.
The power of the legislature to decide what laws are necessary to secure
the public health, safety or welfare is subject to the power of the
court to decide whether an act purporting to promote the public health
or safety has such a reasonable connection therewith as to appear upon
inspection to be adapted to that end. And the court may take judicial
notice of the fact of the common belief of the people upon that subject.
Matter of Viemeister, 179 N. Y. 235.
There are two views as to the words in the statute -- "no employee
shall be required or permitted to work." The statute was carefully
drafted so as to prevent evasion. It was intended to be a barrier to
the employer who might testify that he had not orally or in writing
required his employee to work, and yet he might by inference and acquiescence
accomplish the same result by "permitting" him to so work.
The State, in undertaking this regulation, has a right to safeguard
the citizen against his own lack of knowledge. In dealing with certain
classes of men the State may properly say that, for the purpose of having
able-bodied men at its command when it desires, it shall not permit
these men, when engaged in dangerous or unhealthful occupations, to
work for a longer period of time each day than is found to be in the
interest of the health of the person upon whom the legislation acts.
The unhealthful character of the baker's occupation was fully commented
upon by Judge Vann in his opinion in the Court of Appeals. The opinions
of the judges of that court are very exhaustive and refer fully to all
the cases on this subject.
The propriety of its exercise within constitutional limits is purely
a matter of legislative discretion with which courts cannot interfere.
People v. King, 110 N. Y. 418, 423.
If the act "admits of two constructions as to its being a health
measure or otherwise, the courts should give the construction which
sustains the act and makes it applicable in furtherance of the public
interests. Bohmer v. Haffen, 161 N. Y. 390, 399.
JUDGES: Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes,
Day
MR. JUSTICE PECKHAM, after making the foregoing statement
of the facts, delivered the opinion of the court.
The indictment, it will be seen, charges that the plaintiff in error
violated the one hundred and tenth section of article 8, chapter 415,
of the Laws of 1897, known as the labor law of the State of New York,
in that he wrongfully and unlawfully required and permitted an employe
working for him to work more than sixty hours in one week. There is
nothing in any of the opinions delivered in this case, either in the
Supreme Court or the Court of Appeals of the State, which construes
the section, in using the word "required," as referring to
any physical force being used to obtain the labor of an employe. It
is assumed that the word means nothing more than the requirement arising
from voluntary contract for such labor in excess of the number of hours
specified in the statute. There is no pretense in any of the opinions
that the statute was intended to meet a case of involuntary labor in
any form. All the opinions assume that there is no real distinction,
so far as this question is concerned, between the words "required"
and "permitted." The mandate of the statute that "no
employe shall be required or permitted to work," is the substantial
equivalent of an enactment that "no employe shall contract or agree
to work," more than ten hours per day, and as there is no provision
for special emergencies the statute is mandatory in all cases. It is
not an act merely fixing the number of hours which shall constitute
a legal day's work, but an absolute prohibition upon the employer, permitting,
under any circumstances, more than ten hours work to be done in his
establishment. The employe may desire to earn the extra money, which
would arise from his working more than the prescribed time, but this
statute forbids the employer from permitting the employe to earn it.
The statute necessarily interferes with the right of contract between
the employer and employes, concerning the number of hours in which the
latter may labor in the bakery of the employer. The general right to
make a contract in relation to his business is part of the liberty of
the individual protected by the Fourteenth Amendment of the Federal
Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision
no State can deprive any person of life, liberty or property without
due process of law. The right to purchase or to sell labor is part of
the liberty protected by this amendment, unless there are circumstances
which exclude the right. There are, however, certain powers, existing
in the sovereignty of each State in the Union, somewhat vaguely termed
police powers, the exact description and limitation of which have not
been attempted by the courts. Those powers, broadly stated and without,
at present, any attempt at a more specific limitation, relate to the
safety, health, morals and general welfare of the public. Both property
and liberty are held on such reasonable conditions as may be imposed
by the governing power of the State in the exercise of those powers,
and with such conditions the Fourteenth Amendment was not designed to
interfere. Mugler v. Kansas, 123 U.S. 623; In re Kemmler, 136 U.S. 436;
Crowley v. Christensen, 137 U.S. 86; In re Converse, 137 U.S. 624.
The State, therefore, has power to prevent the individual from making
certain kinds of contracts, and in regard to them the Federal Constitution
offers no protection. If the contract be one which the State, in the
legitimate exercise of its police power, has the right to prohibit,
it is not prevented from prohibiting it by the Fourteenth Amendment.
Contracts in violation of a statute, either of the Federal or state
government, or a contract to let one's property for immoral purposes,
or to do any other unlawful act, could obtain no protection from the
Federal Constitution, as coming under the liberty of person or of free
contract. Therefore, when the State, by its legislature, in the assumed
exercise of its police powers, has passed an act which seriously limits
the right to labor or the right of contract in regard to their means
of livelihood between persons who are sui juris (both employer and employe),
it becomes of great importance to determine which shall prevail -- the
right of the individual to labor for such time as he may choose, or
the right of the State to prevent the individual from laboring or from
entering into any contract to labor, beyond a certain time prescribed
by the State.
This court has recognized the existence and upheld the exercise of the
police powers of the States in many cases which might fairly be considered
as border ones, and it has, in the course of its determination of questions
regarding the asserted invalidity of such statutes, on the ground of
their violation of the rights secured by the Federal Constitution, been
guided by rules of a very liberal nature, the application of which has
resulted, in numerous instances, in upholding the validity of state
statutes thus assailed. Among the later cases where the state law has
been upheld by this court is that of Holden v. Hardy, 169 U.S. 366.
A provision in the act of the legislature of Utah was there under consideration,
the act limiting the employment of workmen in all underground mines
or workings, to eight hours per day, "except in cases of emergency,
where life or property is in imminent danger." It also limited
the hours of labor in smelting and other institutions for the reduction
or refining of ores or metals to eight hours per day, except in like
cases of emergency. The act was held to be a valid exercise of the police
powers of the State. A review of many of the cases on the subject, decided
by this and other courts, is given in the opinion. It was held that
the kind of employment, mining, smelting, etc., and the character of
the employes in such kinds of labor, were such as to make it reasonable
and proper for the State to interfere to prevent the employes from being
constrained by the rules laid down by the proprietors in regard to labor.
The following citation from the observations of the Supreme Court of
Utah in that case was made by the judge writing the opinion of this
court, and approved: "The law in question is confined to the protection
of that class of people engaged in labor in underground mines, and in
smelters and other works wherein ores are reduced and refined. This
law applies only to the classes subjected by their employment to the
peculiar conditions and effects attending underground mining and work
in smelters, and other works for the reduction and refining of ores.
Therefore it is not necessary to discuss or decide whether the legislature
can fix the hours of labor in other employments."
It will be observed that, even with regard to that class of labor, the
Utah statute provided for cases of emergency wherein the provisions
of the statute would not apply. The statute now before this court has
no emergency clause in it, and, if the statute is valid, there are no
circumstances and no emergencies under which the slightest violation
of the provisions of the act would be innocent. There is nothing in
Holden v. Hardy which covers the case now before us. Nor does Atkin
v. Kansas, 191 U.S. 207, touch the case at bar. The Atkin case was decided
upon the right of the State to control its municipal corporations and
to prescribe the conditions upon which it will permit work of a public
character to be done for a municipality. Knoxville Iron Co. v. Harbison,
183 U.S. 13, is equally far from an authority for this legislation.
The employes in that case were held to be at a disadvantage with the
employer in matters of wages, they being miners and coal workers, and
the act simply provided for the cashing of coal orders when presented
by the miner to the employer.
The latest case decided by this court, involving the police power, is
that of Jacobson v. Massachusetts, decided at this term and reported
in 197 U.S. 11. It related to compulsory vaccination, and the law was
held valid as a proper exercise of the police powers with reference
to the public health. It was stated in the opinion that it was a case
"of an adult who, for aught that appears, was himself in perfect
health and a fit subject for vaccination, and yet, while remaining in
the community, refused to obey the statute and the regulation adopted
in execution of its provisions for the protection of the public health
and the public safety, confessedly endangered by the presence of a dangerous
disease." That case is also far from covering the one now before
the court.
Petit v. Minnesota, 177 U.S. 164, was upheld as a proper exercise of
the police power relating to the observance of Sunday, and the case
held that the legislature had the right to declare that, as matter of
law, keeping barber shops open on Sunday was not a work of necessity
or charity.
It must, of course, be conceded that there is a limit to the valid exercise
of the police power by the State. There is no dispute concerning this
general proposition. Otherwise the Fourteenth Amendment would have no
efficacy and the legislatures of the States would have unbounded power,
and it would be enough to say that any piece of legislation was enacted
to conserve the morals, the health or the safety of the people; such
legislation would be valid, no matter how absolutely without foundation
the claim might be. The claim of the police power would be a mere pretext
-- become another and delusive name for the supreme sovereignty of the
State to be exercised free from constitutional restraint. This is not
contended for. In every case that comes before this court, therefore,
where legislation of this character is concerned and where the protection
of the Federal Constitution is sought, the question necessarily arises:
Is this a fair, reasonable and appropriate exercise of the police power
of the State, or is it an unreasonable, unnecessary and arbitrary interference
with the right of the individual to his personal liberty or to enter
into those contracts in relation to labor which may seem to him appropriate
or necessary for the support of himself and his family? Of course the
liberty of contract relating to labor includes both parties to it. The
one has as much right to purchase as the other to sell labor.
This is not a question of substituting the judgment of the court for
that of the legislature. If the act be within the power of the State
it is valid, although the judgment of the court might be totally opposed
to the enactment of such a law. But the question would still remain:
Is it within the police power of the State? and that question must be
answered by the court.
The question whether this act is valid as a labor law, pure and simple,
may be dismissed in a few words. There is no reasonable ground for interfering
with the liberty of person or the right of free contract, by determining
the hours of labor, in the occupation of a baker. There is no contention
that bakers as a class are not equal in intelligence and capacity to
men in other trades or manual occupations, or that they are not able
to assert their rights and care for themselves without the protecting
arm of the State, interfering with their independence of judgment and
of action. They are in no sense wards of the State. Viewed in the light
of a purely labor law, with no reference whatever to the question of
health, we think that a law like the one before us involves neither
the safety, the morals nor the welfare of the public, and that the interest
of the public is not in the slightest degree affected by such an act.
The law must be upheld, if at all, as a law pertaining to the health
of the individual engaged in the occupation of a baker. It does not
affect any other portion of the public than those who are engaged in
that occupation. Clean and wholesome bread does not depend upon whether
the baker works but ten hours per day or only sixty hours a week. The
limitation of the hours of labor does not come within the police power
on that ground.
It is a question of which of two powers or rights shall prevail -- the
power of the State to legislate or the right of the individual to liberty
of person and freedom of contract. The mere assertion that the subject
relates though but in a remote degree to the public health does not
necessarily render the enactment valid. The act must have a more direct
relation, as a means to an end, and the end itself must be appropriate
and legitimate, before an act can be held to be valid which interferes
with the general right of an individual to be free in his person and
in his power to contract in relation to his own labor.
This case has caused much diversity of opinion in the state courts.
In the Supreme Court two of the five judges composing the Appellate
Division dissented from the judgment affirming the validity of the act.
In the Court of Appeals three of the seven judges also dissented from
the judgment upholding the statute. Although found in what is called
a labor law of the State, the Court of Appeals has upheld the act as
one relating to the public health -- in other words, as a health law.
One of the judges of the Court of Appeals, in upholding the law, stated
that, in his opinion, the regulation in question could not be sustained
unless they were able to say, from common knowledge, that working in
a bakery and candy factory was an unhealthy employment. The judge held
that, while the evidence was not uniform, it still led him to the conclusion
that the occupation of a baker or confectioner was unhealthy and tended
to result in diseases of the respiratory organs. Three of the judges
dissented from that view, and they thought the occupation of a baker
was not to such an extent unhealthy as to warrant the interference of
the legislature with the liberty of the individual.
We think the limit of the police power has been reached and passed in
this case. There is, in our judgment, no reasonable foundation for holding
this to be necessary or appropriate as a health law to safeguard the
public health or the health of the individuals who are following the
trade of a baker. If this statute be valid, and if, therefore, a proper
case is made out in which to deny the right of an individual, sui juris,
as employer or employe, to make contracts for the labor of the latter
under the protection of the provisions of the Federal Constitution,
there would seem to be no length to which legislation of this nature
might not go. The case differs widely, as we have already stated, from
the expressions of this court in regard to laws of this nature, as stated
in Holden v. Hardy and Jacobson v. Massachusetts, supra.
We think that there can be no fair doubt that the trade of a baker,
in and of itself, is not an unhealthy one to that degree which would
authorize the legislature to interfere with the right to labor, and
with the right of free contract on the part of the individual, either
as employer or employe. In looking through statistics regarding all
trades and occupations, it may be true that the trade of a baker does
not appear to be as healthy as some other trades, and is also vastly
more healthy than still others. To the common understanding the trade
of a baker has never been regarded as an unhealthy one. Very likely
physicians would not recommend the exercise of that or of any other
trade as a remedy for ill health. Some occupations are more healthy
than others, but we think there are none which might not come under
the power of the legislature to supervise and control the hours of working
therein, if the mere fact that the occupation is not absolutely and
perfectly healthy is to confer that right upon the legislative department
of the Government. It might be safely affirmed that almost all occupations
more or less affect the health. There must be more than the mere fact
of the possible existence of some small amount of unhealthiness to warrant
legislative interference with liberty. It is unfortunately true that
labor, even in any department, may possibly carry with it the seeds
of unhealthiness. But are we all, on that account, at the mercy of legislative
majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker,
a dry goods clerk, a bank's, a lawyer's or a physician's clerk, or a
clerk in almost any kind of business, would all come under the power
of the legislature, on this assumption. No trade, no occupation, no
mode of earning one's living, could escape this all-pervading power,
and the acts of the legislature in limiting the hours of labor in all
employments would be valid, although such limitation might seriously
cripple the ability of the laborer to support himself and his family.
In our large cities there are many buildings into which the sun penetrates
for but a short time in each day, and these buildings are occupied by
people carrying on the business of bankers, brokers, lawyers, real estate,
and many other kinds of business, aided by many clerks, messengers,
and other employes. Upon the assumption of the validity of this act
under review, it is not possible to say that an act, prohibiting lawyers'
or bank clerks, or others, from contracting to labor for their employers
more than eight hours a day, would be invalid. It might be said that
it is unhealthy to work more than that number of hours in an apartment
lighted by artificial light during the working hours of the day; that
the occupation of the bank clerk, the lawyer's clerk, the real estate
clerk, or the broker's clerk in such offices is therefore unhealthy,
and the legislature in its paternal wisdom must, therefore, have the
right to legislate on the subject of and to limit the hours for such
labor, and if it exercises that power and its validity be questioned,
it is sufficient to say, it has reference to the public health; it has
reference to the health of the employes condemned to labor day after
day in buildings where the sun never shines; it is a health law, and
therefore it is valid, and cannot be questioned by the courts.
It is also urged, pursuing the same line of argument, that it is to
the interest of the State that its population should be strong and robust,
and therefore any legislation which may be said to tend to make people
healthy must be valid as health laws, enacted under the police power.
If this be a valid argument and a justification for this kind of legislation,
it follows that the protection of the Federal Constitution from undue
interference with liberty of person and freedom of contract is visionary,
wherever the law is sought to be justified as a valid exercise of the
police power. Scarcely any law but might find shelter under such assumptions,
and conduct, properly so called, as well as contract, would come under
the restrictive sway of the legislature. Not only the hours of employes,
but the hours of employers, could be regulated, and doctors, lawyers,
scientists, all professional men, as well as athletes and artisans,
could be forbidden to fatigue their brains and bodies by prolonged hours
of exercise, lest the fighting strength of the State be impaired. We
mention these extreme cases because the contention is extreme. We do
not believe in the soundness of the views which uphold this law. On
the contrary, we think that such a law as this, although passed in the
assumed exercise of the police power, and as relating to the public
health, or the health of the employes named, is not within that power,
and is invalid. The act is not, within any fair meaning of the term,
a health law, but is an illegal interference with the rights of individuals,
both employers and employes, to make contracts regarding labor upon
such terms as they may think best, or which they may agree upon with
the other parties to such contracts. Statutes of the nature of that
under review, limiting the hours in which grown and intelligent men
may labor to earn their living, are mere meddlesome interferences with
the rights of the individual, and they are not saved from condemnation
by the claim that they are passed in the exercise of the police power
and upon the subject of the health of the individual whose rights are
interfered with, unless there be some fair ground, reasonable in and
of itself, to say that there is material danger to the public health
or to the health of the employes, if the hours of labor are not curtailed.
If this be not clearly the case the individuals, whose rights are thus
made the subject of legislative interference, are under the protection
of the Federal Constitution regarding their liberty of contract as well
as of person; and the legislature of the State has no power to limit
their right as proposed in this statute. All that it could properly
do has been done by it with regard to the conduct of bakeries, as provided
for in the other sections of the act, above set forth. These several
sections provide for the inspection of the premises where the bakery
is carried on, with regard to furnishing proper wash-rooms and water-closets,
apart from the bake-room, also with regard to providing proper drainage,
plumbing and painting; the sections, in addition, provide for the height
of the ceiling, the cementing or tiling of floors, where necessary in
the opinion of the factory inspector, and for other things of that nature;
alterations are also provided for and are to be made where necessary
in the opinion of the inspector, in order to comply with the provisions
of the statute. These various sections may be wise and valid regulations,
and they certainly go to the full extent of providing for the cleanliness
and the healthiness, so far as possible, of the quarters in which bakeries
are to be conducted. Adding to all these requirements, a prohibition
to enter into any contract of labor in a bakery for more than a certain
number of hours a week, is, in our judgment, so wholly beside the matter
of a proper, reasonable and fair provision, as to run counter to that
liberty of person and of free contract provided for in the Federal Constution.
It was further urged on the argument that restricting the hours of labor
in the case of bakers was valid because it tended to cleanliness on
the part of the workers, as a man was more apt to be cleanly when not
overworked, and if cleanly then his "output" was also more
likely to be so. Wthat has already been said applies with equal force
to this contention. We do not admit the reasoning to be sufficient to
justify the claimed right of such interference. The State in that case
would assume the position of a supervisor, or pater familias, over every
act of the individual, and its right of governmental interference with
his hours of labor, his hours of exercise, the character thereof, and
the extent to which it shall be carried would be recognized and upheld.
In our judgment it is not possible in fact to discover the connection
between the number of hours a baker may work in the bakery and the healthful
quality of the bread made by the workman. The connection, if any exists,
is too shadowy and thin to build any argument for the interference of
the legislature. If the man works ten hours a day it is all right, but
if ten and a half or eleven his health is in danger and his bread may
be unhealthful, and, therefore, he shall not be permitted to do it.
This, we think, is unreasonable and entirely arbitrary. When assertions
such as we have adverted to become necessary in order to give, if possible,
a plausible foundation for the contention that the law is a "health
law," it gives rise to at least a suspicion that there was some
other motive dominating the legislature than the purpose to subserve
the public health or welfare.
This interference on the part of the legislatures of the several States
with the ordinary trades and occupations of the people seems to be on
the increase. In the Supreme Court of New York, in the case of People
v. Beattie, Appellate Division, First Department, decided in 1904, 89
N.Y. Supp. 193, a statute regulating the trade of horseshoeing, and
requiring the person practicing such trade to be examined and to obtain
a certificate from a board of examiners and file the same with the clerk
of the county wherein the person proposes to practice such trade, was
held invalid, as an arbitrary interference with personal liberty and
private property without due process of law. The attempt was made, unsuccessfully,
to justify it as a health law.
The same kind of a statute was held invalid (In re Aubry) by the Supreme
Court of Washington in December, 1904. 78 Pac. Rep. 900. The court held
that the act deprived citizens of their liberty and property without
due process of law and denied to them the equal protection of the laws.
It also held that the trade of a horseshoer is not a subject of regulation
under the police power of the State, as a business concerning and directly
affecting the health, welfare or comfort of its inhabitants; and that
therefore a law which provided for the examination and registration
of horseshoers in certain cities was unconstitutional, as an illegitimate
exercise of the police power.
The Supreme Court of Illinois in Bessette v. People, 193 Illinois, 334,
also held that a law of the same nature, providing for the regulation
and licensing of horseshoers, was unconstitutional as an illegal interference
with the liberty of the individual in adopting and pursuing such calling
as he may choose, subject only to the restraint necessary to secure
the common welfare. See also Godcharles v. Wigeman, 113 Pa. St. 431,
437; Low v. Rees Printing Co., 41 Nebraska, 127, 145. In these cases
the courts upheld the right of free contract and the right to purchase
and sell labor upon such terms as the parties may agree to.
It is impossible for us to shut our eyes to the fact that many of the
laws of this character, while passed under what is claimed to be the
police power for the purpose of protecting the public health or welfare,
are, in reality, passed from other motives. We are justified in saying
so when, from the character of the law and the subject upon which it
legislates, it is apparent that the public health or welfare bears but
the most remote relation to the law. The purpose of a statute must be
determined from the natural and legal effect of the language employed;
and whether it is or is not repugnant to the Constitution of the United
States must be determined from the natural effect of such statutes when
put into operation, and not from their proclaimed purpose. Minnesota
v. Barber, 136 U.S. 313; Brimmer v. Rebman, 138 U.S. 78. The court looks
beyond the mere letter of the law in such cases. Yick Wo v. Hopkins,
118 U.S. 356.
It is manifest to us that the limitation of the hours of labor as provided
for in this section of the statute under which the indictment was found,
and the plaintiff in error convicted, has no such direct relation to
and no such substantial effect upon the health of the employe, as to
justify us in regarding the section as really a health law. It seems
to us that the real object and purpose were simply to regulate the hours
of labor between the master and his employes (all being men, sui juris),
in a private business, not dangerous in any degree to morals or in any
real and substantial degree, to the health of the employes. Under such
circumstances the freedom of master and employe to contract with each
other in relation to their employment, and in defining the same, cannot
be prohibited or interfered with, without violating the Federal Constitution.
The judgment of the Court of Appeals of New York as well as that of
the Supreme Court and of the County Court of Oneida County must be reversed
and the case remanded to the County Court for further proceedings not
inconsistent with this opinion.
Reversed.
EndNotes
1 "§ 110. Hours of labor in bakeries and confectionery establishments.
-- No employe shall be required or permitted to work in a biscuit, bread
or cake bakery or confectionery establishment more than sixty hours
in any one week, or more than ten hours in any one day, unless for the
purpose of making a shorter work day on the last day of the week; nor
more hours in any one week than will make an average of ten hours per
day for the number of days during such week in which such employe shall
work.
"§ 111. Drainage and plumbing of buildings and rooms occupied
by bakeries. -- All buildings or rooms occupied as biscuit, bread, pie
or cake bakeries, shall be drained and plumbed in a manner conducive
to the proper and healthful sanitary condition thereof, and shall be
constructed with air shafts, windows or ventilating pipes, sufficient
to insure ventilation. The factory inspector may direct the proper drainage,
plumbing and ventilation of such rooms or buildings. No cellar or basement,
not now used for a bakery shall hereafter be so occupied or used, unless
the proprietor shall comply with the sanitary provisions of this article.
"§ 112. Requirements as to rooms, furniture, utensils and
manufactured products. -- Every room used for the manufacture of flour
or meal food products shall be at least eight feet in height and shall
have, if deemed necessary by the factory inspector, an impermeable floor
constructed of cement, or of tiles laid in cement, or an additional
flooring of wood properly saturated with linseed oil. The side walls
of such rooms shall be plastered or wainscoted. The factory inspector
may require the side walls and ceiling to be whitewashed, at least once
in three months. He may also require the wood work of such walls to
be painted. The furniture and utensils shall be so arranged as to be
readily cleansed and not prevent the proper cleaning of any part of
a room. The manufactured flour or meal food products shall be kept in
dry and airy rooms, so arranged that the floors, shelves and all other
facilities for storing the same can be properly cleaned. No domestic
animals, except cats, shall be allowed to remain in a room used as a
biscuit, bread, pie, or cake bakery, or any room in such bakery where
flour or meal products are stored.
"§ 113. Wash-rooms and closets; sleeping places. --
Every such bakery shall be provided with a proper wash-room and water-closet
or water-closets apart from the bake-room, or rooms where the manufacture
of such food product is conducted, and no water-closet, earth-closet,
privy or ash-pit shall be within or connected directly with the bake-room
of any bakery, hotel or public restaurant.
"No person shall sleep in a room occupied as a bake-room. Sleeping
places for the persons employed in the bakery shall be separate from
the rooms where flour or meal food products are manufactured or stored.
If the sleeping places are on the same floor where such products are
manufactured, stored or sold, the factory inspector may inspect and
order them put in a proper sanitary condition.
"§ 114. Inspection of bakeries. -- The factory inspector shall
cause all bakeries to be inspected. If it be found upon such inspection
that the bakeries so inspected are constructed and conducted in compliance
with the provisions of this chapter, the factory inspector shall issue
a certificate to the persons owning or conducting such bakeries.
"§ 115. Notice requiring alterations. -- If, in the opinion
of the factory inspector, alterations are required in or upon premises
occupied and used as bakeries, in order to comply with the provisions
of this article, a written notice shall be served by him upon the owner,
agent or lessee of such premises, either personally or by mail, requiring
such alterations to be made within sixty days after such service, and
such alterations shall be made accordingly."
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Dissenting Opinions
Lochner v. People of State of New York, 198 U.S. 45 (1905)
Mr. Justice Harlan (with whom Mr. Justice White
and Mr. Justice Day concurred) dissenting:
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Associate Justice
John Marshall Harlan
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While this court has not attempted to mark the precise boundaries of
what is called the police power of the state, the existence of the power
has been uniformly recognized, equally by the Federal and State courts.
All the cases agree that this power extends at least to the protection
of the lives, the health, and the safety of the public against the injurious
exercise by any citizen of his own rights.
In Patterson v. Kentucky, 97 U.S. 501, 24 L. ed. 1115, after referring
to the general principle that rights given by the Constitution cannot
be impaired by state legislation of any kind, this court said: 'It [
this court] has, nevertheless, with marked distinctness and uniformity,
recognized the necessity, growing out of the fundamental conditions
of civil society, of upholding state police regulations which were enacted
in good faith, and had appropriate and direct connection with that protection
to life, health, and property which each state owes to her citizens.'
So in Barbier v. Connolly, 113 U.S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep.
357: 'But neither the [14th] Amendment, — broad and comprehensive as
it is, — nor any other amendment, was designed to interfere with the
power of the state, sometimes termed its police power, to prescribe
regulations to promote the health, peace, morals, education, and good
order of the people.'
Speaking generally, the state, in the exercise of its powers, may not
unduly interfere with the right of the citizen to enter into contracts
that may be necessary and essential in the enjoyment of the inherent
rights belonging to everyone, among which rights is the right 'to be
free in the enjoyment of all his faculties, to be free to use them in
all lawful ways, to live and work where he will, to earn his livelihood
by any lawful calling, to pursue any livelihood or avocation.' This
was declared [198 U.S.
45, 66] in Allgeyer v. Louisiana, 165 U.S. 578, 589, 41 S. L.
ed. 832, 835, 17 Sup. Ct. Rep. 427, 431. But in the same case it was
conceded that the right to contract in relation to persons and property,
or to do business, within a state, may be 'regulated, and sometimes
prohibited, when the contracts or business conflict with the policy
of the state as contained in its statutes.' (p. 591, L. ed. p. 836,
Sup. Ct. Rep. p. 432.)
So, as said in Holden v. Hardy, 169 U.S. 366, 391, 42 S. L. ed. 780,
790, 18 Sup. Ct. Rep. 383, 388: 'This right of contract, however, is
itself subject to certain limitations which the state may lawfully impose
in the exercise of its police powers. While this power is inherent in
all governments, it has doubtless been greatly expanded in its application
during the past century, owing to an enormous increase in the number
of occupations which are dangerous, or so far detrimental, to the health
of employees as to demand special precautions for their well-being and
protection, or the safety of adjacent property. While this court has
held, notably in the cases Davidson v. New Orleans, 96 U.S. 97, 24 L.
ed. 616, and Yick Wo. v. Hopkins, 118 U.S. 356, 30 L. ed. 220, 6 Sup.
Ct. Rep. 1064, that the police power cannot be put forward as an excuse
for oppressive and unjust legislation, it may be lawfully resorted to
for the purpose of preserving the public health, safety, or morals,
or the abatement of public nuisances; and a large discretion 'is necessarily
vested in the legislature to determine, not only what the interests
of the public required, but what measures are necessary for the protection
of such interests.' Lawton v. Steele, 152 U.S. 133, 136, 38 S. L. ed.
385, 388, 14 Sup. Ct. Rep. 499, 501.' Referring to the limitations placed
by the state upon the hours of workmen, the court in the same case said
(p. 395, L. ed. p. 792, Sup. Ct. Rep. p. 389): 'These employments, when
too long pursued, the legislature has judged to be detrimental to the
health of the employees, and, so long as there are reasonable grounds
for believing that this is so, its decision upon this subject cannot
be reviewed by the Federal courts.'
Subsequently, in Gundling v. Chicago, 177 U.S. 183, 188, 44 S. L. ed.
725, 728, 20 Sup. Ct. Rep. 633, 635, this court said: 'Regulations respecting
the pursuit of a lawful trade or business are of very frequent occurrence
in the various cities of the country, and what such regulations shall
be and [198 U.S. 45,
67] to what particular trade, business, or occupation they shall
apply, are questions for the state to determine, and their determination
comes within the proper exercise of the police power by the state, and,
unless the regulations are so utterly unreasonable and extravagant in
their nature and purpose that the property and personal rights of the
citizen are unnecessarily, and in a manner wholly arbitrary, interfered
with or destroyed without due process of law, they do not extend beyond
the power of the state to pass, and they form no subject for Federal
interference. As stated in Crowley v. Christensen, 137 U.S. 86, 34 L.
ed. 620, 11 Sup. Ct. Rep. 13, 'the possession and enjoyment of all rights
are subject to such reasonable conditions as may be deemed by the governing
authority of the country essential to the safety, health, peace, good
order, and morals of the community."
In St. Louis I. M. & S. R. Co. v. Paul, 173 U.S. 404, 409, 43 S.
L. ed. 746, 748, 19 Sup. Ct. Rep. 419, and in Knoxville Iron Co. v.
Harbison, 183 U.S. 13, 21, 22 S., 46 L. ed. 55, 61, 22 Sup. Ct. Rep.
1, it was distinctly adjudged that the right of contract was not 'absolute,
but may be subjected to the restraints demanded by the safety and welfare
of the state.' Those cases illustrate the extent to which the state
may restrict or interfere with the exercise of the right of contracting.
The authorities on the same line are so numerous that further citations
are unnecessary.
I take it to be firmly established that what is called the liberty
of contract may, within certain limits, be subjected to regulations
designed and calculated to promote the general welfare, or to guard
the public health, the public morals, or the public safety. 'The liberty
secured by the Constitution of the United States to every person within
its jurisdiction does not import.' this court has recently said, 'an
absolute right in each person to be at all times and in all circumstances
wholly freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good.' Jacobson v.
Massachusetts, 197 U.S. 11, 25 Sup. Ct. Rep. 358, 49 L. ed. [198
U.S. 45, 68] Granting, then, that there is a liberty of contract
which cannot be violated even under the sanction of direct legislative
enactment, but assuming, as according to settled law we may assume,
that such liberty of contract is subject to such regulations as the
state may reasonably prescribe for the common good and the well-being
of society, what are the conditions under which the judiciary may declare
such regulations to be in excess of legislative authority and void?
Upon this point there is no room for dispute; for the rule is universal
that a legislative enactment, Federal or state, is never to be disregarded
or held invalid unless it be, beyond question, plainly and palpably
in excess of legislative power. In Jacobson v. Massachusetts, 197 U.S.
11, 25 Sup. Ct. Rep. 358, 49 L. ed . —, we said that the power of the
courts to review legislative action in respect of a matter affecting
the general welfare exists only 'when that which the legislature has
done comes within the rule that, if a statute purporting to have been
enacted to protect the public health, the public morals, or the public
safety has no real or substantial relation to those objects, or is,
beyond all question, a plain, palpable invasion of rights secured by
the fundamental law,' citing Mugler v. Kansas, 123 U.S. 623, 661, 31
S. L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U.S.
313, 320, 34 S. L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct.
Rep. 862; Atkin v. Kansas, 191 U.S. 207, 223, 48 S. L. ed. 148, 158,
24 Sup. Ct. Rep. 124. If there be doubt as to the validity of the statute,
that doubt must therefore be resolved in favor of its validity, and
the courts must keep their hands off, leaving the legislature to meet
the responsibility for unwise legislation. If the end which the legislature
seeks to accomplish be one to which its power extends, and if the means
employed to that end, although not the wisest or best, are yet not plainly
and palpably unauthorized by law, then the court cannot interfere. In
other words, when the validity of a statute is questioned, the burden
of proof, so to speak, is upon those who assert it to be unconstitutional.
M'Culloch v. Maryland, 4 Wheat. 316, 421, 4 L. ed. 579, 605.
Let these principles be applied to the present case. By the statute
in question it is provided that 'no employee shall be required, or permitted,
to work in a biscuit, bread, or cake [198
U.S. 45, 69] bakery, or confectionery establishment, more than
sixty hours in any one week, or more than ten hours in any one day,
unless for the purpose of making a shorter work day on the last day
of the week; nor more hours in any one week than will make an average
of ten hours per day for the number of days during such week in which
such employee shall work.'
It is plain that this statute was enacted in order to protect the physical
well-being of those who work in bakery and confectionery establishments.
It may be that the statute had its origin, in part, in the belief that
employers and employees in such establishments were not upon an equal
footing, and that the necessities of the latter often compelled them
to submit to such exactions as unduly taxed their strength. Be this
as it may, the statute must be taken as expressing the belief of the
people of New York that, as a general rule, and in the case of the average
man, labor in excess of sixty hours during a week in such establishments
may endanger the health of those who thus labor. Whether or not this
be wise legislation it is not the province of the court to inquire.
Under our systems of government the courts are not concerned with the
wisdom or policy of legislation. So that, in determining the question
of power to interfere with liberty of contract, the court may inquire
whether the means devised by the state are germane to an end which may
be lawfully accomplished and have a real or substantial relation to
the protection of health, as involved in the daily work of the persons,
male and female, engaged in bakery and confectionery establishments.
But when this inquiry is entered upon I find it impossible, in view
of common experience, to say that there is here no real or substantial
relation between the means employed by the state and the end sought
to be accomplished by its legislation. Mugler v. Kansas, 123 U.S. 623,
661, 31 S. L. ed. 205, 210, 8 Sup. Ct. Rep. 273. Nor can I say that
the statute has no appropriate or direct connection with that protection
to health which each state owes to her citizens (Patterson v. Kentucky,
97 U.S. 501, 24 L. ed. 1115); or that it is not promotive of the health
of the employees in question ( Holden v. Hardy, 169 U.S. 366, 391, 42
S. L. ed. 780, 790, 18 Sup. Ct. Rep. 383; Lawton v. Steele, 152 U.S.
133, 139, 38 S. L. ed. 385, 389, 14 Sup. Ct. Rep. 499); [198 U.S. 45, 70] or that the regulation prescribed
by the state is utterly unreasonable and extravagant or wholly arbitrary
(Gundling v. Chicago, 177 U.S. 183, 188, 44 S. L. ed. 725, 728, 20 Sup.
Ct. Rep. 633). Still less can I say that the statute is, beyond question,
a plain, palpable invasion of rights secured by the fundamental law.
Jacobson v. Massachusetts, 196 U.S. 11, ante, p. 358, 25 Sup. Ct. Rep.
358. Therefore I submit that this court will transcend its functions
if it assumes to annul the statute of New York. It must be remembered
that this statute does not apply to all kinds of business. It applies
only to work in bakery and confectionery establishments, in which, as
all know, the air constantly breathed by workmen is not as pure and
healthful as that to be found in some other establishments or out of
doors.
Professor Hirt in his treatise on the 'Diseases of the Workers' has
said: 'The labor of the bakers is among the hardest and most laborious
imaginable, because it has to be performed under conditions injurious
to the health of those engaged in it. It is hard, very hard, work, not
only because it requires a great deal of physical exertion in an overheated
workshop and during unreasonably long hours, but more so because of
the erratic demands of the public, compelling the baker to perform the
greater part of his work at night, thus depriving him of an opportunity
to enjoy the necessary rest and sleep, — a fact which is highly injurious
to his health.' Another writer says: 'The constant inhaling of flour
dust causes inflammation of the lungs and of the bronchial tubes. The
eyes also suffer through this dust, which is responsible for the many
cases of running eyes among the bakers. The long hours of toil to which
all bakers are subjected produce rheumatism, cramps, and swollen legs.
The intense heat in the workshops induces the workers to resort to cooling
drinks, which, together with their habit of exposing the greater part
of their bodies to the change in the atmosphere, is another source of
a number of diseases of various organs. Nearly all bakers are palefaced
and of more delicate health than the workers of other crafts, which
is chiefly due to their hard work and their irregular and unnatural
mode of living, whereby the power of resistance against disease is [198
U.S. 45, 71] greatly diminished. The average age of a baker is
below that of other workmen; they seldom live over their fiftieth year,
most of them dying between the ages of forty and fifty. During periods
of epidemic diseases the bakers are generally the first to succumb to
the disease, and the number swept away during such periods far exceeds
the number of other crafts in comparison to the men employed in the
respective industries. When, in 1720, the plague visited the city of
Marseilles, France, every baker in the city succumbed to the epidemic,
which caused considerable excitement in the neighboring cities and resulted
in measures for the sanitary protection of the bakers.'
In the Eighteenth Annual Report by the New York Bureau of Statistics
of Labor it is stated that among the occupations involving exposure
to conditions that interfere with nutrition is that of a baker. (p.
52.) In that Report it is also stated that, 'from a social point of
view, production will be increased by any change in industrial organization
which diminishes the number of idlers, paupers, and criminals. Shorter
hours of work, by allowing higher standards of comfort and purer family
life, promise to enhance the industrial efficiency of the wage-working
class, — improved health, longer life, more content and greater intelligence
and inventiveness.' (p. 82.)
Statistics show that the average daily working time among workingmen
in different countries is, in Australia, eight hours; in Great Britain,
nine; in the United States, nine and three-quarters; in Denmark, nine
and three-quarters; in Norway, ten; Sweden, France, and Switzerland,
ten and one-half; Germany, ten and one-quarter; Belgium, Italy, and
Austria, eleven; and in Russia, twelve hours.
We judicially know that the question of the number of hours during
which a workman should continuously labor has been, for a long period,
and is yet, a subject of serious consideration among civilized peoples,
and by those having special knowledge of the laws of health. Suppose
the statute prohibited labor in bakery and confectionery establishments
in excess of eighteen hours each day. No one, I take it, could dispute
the power of the state to enact such a statute. But the statute [198
U.S. 45, 72] before us does not embrace extreme or exceptional
cases. It may be said to occupy a middle ground in respect of the hours
of labor. What is the true ground for the state to take between legitimate
protection, by legislation, of the public health and liberty of contract
is not a question easily solved, nor one in respect of which there is
or can be absolute certainty. There are very few, if any, questions
in political economy about which entire certainty may be predicated.
One writer on relation of the state to labor has well said: 'The manner,
occasion, and degree in which the state may interfere with the industrial
freedom of its citizens is one of the most debatable and difficult questions
of social science.' Jevons, 33.
We also judicially know that the number of hours that should constitute
a day's labor in particular occupations involving the physical strength
and safety of workmen has been the subject of enactments by Congress
and by nearly all of the states. Many, if not most, of those enactments
fix eight hours as the proper basis of a day's labor.
I do not stop to consider whether any particular view of this economic
question presents the sounder theory. What the precise facts are it
may be difficult to say. It is enough for the determination of this
case, and it is enough for this court to know, that the question is
one about which there is room for debate and for an honest difference
of opinion. There are many reasons of a weighty, substantial character,
based upon the experience of mankind, in support of the theory that,
all things considered, more than ten hours' steady work each day, from
week to week, in a bakery or confectionery establishment, may endanger
the health and shorten the lives of the workmen, thereby diminishing
their physical and mental capacity to serve the state and to provide
for those dependent upon them.
If such reasons exist that ought to be the end of this case, for the
state is not amenable to the judiciary, in respect of its legislative
enactments, unless such enactments are plainly, palpably, beyond all
question, inconsistent with the Constitution [198
U.S. 45, 73] of the United States. We are not to presume that
the state of New York has acted in bad faith. Nor can we assume that
its legislature acted without due deliberation, or that it did not determine
this question upon the fullest attainable information and for the common
good. We cannot say that the state has acted without reason, nor ought
we to proceed upon the theory that its action is a mere sham. Our duty,
I submit, is to sustain the statute as not being in conflict with the
Federal Constitution, for the reason — and such is an all-sufficient
reason — it is not shown to be plainly and palpably inconsistent with
that instrument. Let the state alone in the management of its purely
domestic affairs, so long as it does not appear beyond all question
that it has violated the Federal Constitution. This view necessarily
results from the principle that the health and safety of the people
of a state are primarily for the state to guard and protect.
I take leave to say that the New York statute, in the particulars here
involved, cannot be held to be in conflict with the 14th Amendment,
without enlarging the scope of the amendment far beyond its original
purpose, and without bringing under the supervision of this court matters
which have been supposed to belong exclusively to the legislative departments
of the several states when exerting their conceded power to guard the
health and safety of their citizens by such regulations as they in their
wisdom deem best. Health laws of every description constitute, said
Chief Justice Marshall, a part of that mass of legislation which 'embraces
everything within the territory of a state, not surrendered to the general
government; all which can be most advantageously exercised by the states
themselves.' Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71. A decision
that the New York statute is void under the 14th Amendment will, in
my opinion, involve consequences of a far-reaching and mischievous character;
for such a decision would seriously cripple the inherent power of the
states to care for the lives, health, and wellbeing of their citizens.
Those are matters which can be best controlled by the states. [198
U.S. 45, 74] The preservation of the just powers of the states
is quite as vital as the preservation of the powers of the general government.
When this court had before it the question of the constitutionality
of a statute of Kansas making it a criminal offense for a contractor
for public work to permit or require his employees to perform labor
upon such work in excess of eight hours each day, it was contended that
the statute was in derogation of the liberty both of employees and employer.
It was further contended that the Kansas statute was mischievous in
its tendencies. This court, while disposing of the question only as
it affected public work, held that the Kansas statute was not void under
the 14th Amendment. But it took occasion to say what may well be here
repeated: 'The responsibility therefor rests upon legislators, not upon
the courts. No evils arising from such legislation could be more far
reaching than those that might come to our system of government if the
judiciary, abandoning the sphere assigned to it by the fundamental law,
should enter the domain of legislation, and upon grounds merely of justice
or reason or wisdom annul statutes that had received the sanction of
the people's representatives. We are reminded by counsel that it is
the solemn duty of the courts in cases before them to guard the constitutional
rights of the citizen against merely arbitrary power. That is unquestionably
true. But it is equally true-indeed, the public interests imperatively
demand — that legislative enactments should be recognized and enforced
by the courts as embodying the will of the people, unless they are plainly
and palpably beyond all question in violation of the fundamental law
of the Constitution.' Atkin v. Kansas, 191 U.S. 207, 223, 48 S. L. ed.
148, 158, 24 Sup. Ct. Rep. 124, 128.
The judgment, in my opinion, should be affirmed.
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Mr. Justice Holmes
dissenting: |
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Associate Justice
Oliver Wendell Holmes, Jr.
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I regret sincerely that I am unable to agree with the judgment [198
U.S. 45, 75] in this case, and that I think it my duty to express
my dissent.
This case is decided upon an economic theory which a large part of
the country does not entertain. If it were a question whether I agreed
with that theory, I should desire to study it further and long before
making up my mind. But I do not conceive that to be my duty, because
I strongly believe that my agreement or disagreement has nothing to
do with the right of a majority to embody their opinions in law. It
is settled by various decisions of this court that state constitutions
and state laws may regulate life in many ways which we as legislators
might think as injudicious, or if you like as tyrannical, as this, and
which, equally with this, interfere with the liberty to contract. Sunday
laws and usury laws are ancient examples. A more modern one is the prohibition
of lotteries. The liberty of the citizen to do as he likes so long as
he does not interfere with the liberty of others to do the same, which
has been a shibboleth for some well-known writers, is interfered with
by school laws, by the Postoffice, by every state or municipal institution
which takes his money for purposes thought desirable, whether he likes
it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social
Statics. The other day we sustained the Massachusetts vaccination law.
Jacobson v. Massachusetts, 197 U.S. 11, 25 Sup. Ct. Rep. 358, 49 L.
ed.United States and state statutes and decisions cutting down the liberty
to contract by way of combination are familiar to this court. Northern
Securities Co. v. United States, 193 U.S. 197, 48 L. ed. 679, 24 Sup.
Ct. Rep. 436. Two years ago we upheld the prohibition of sales of stock
on margins, or for future delivery, in the Constitution of California.
Otis v. Parker, 187 U.S. 606, 47 L. ed. 323, 23 Sup. Ct. Rep. 168. The
decision sustaining an eight-hour law for miners is still recent. Holden
v. Hardy, 169 U.S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383. Some of
these laws embody convictions or prejudices which judges are likely
to share. Some may not. But a Constitution is not intended to embody
a particular economic theory, whether of paternalism and the organic
relation of the citizen to the state or of laissez faire. [198
U.S. 45, 76] It is made for people of fundamentally differing
views, and the accident of our finding certain opinions natural and
familiar, or novel, and even shocking, ought not to conclude our judgment
upon the question whether statutes embodying them conflict with the
Constitution of the United States.
General propositions do not decide concrete cases. The decision will
depend on a judgment or intuition more subtle than any articulate major
premise. But I think that the proposition just stated, if it is accepted,
will carry us far toward the end. Every opinion tends to become a law.
I think that the word 'liberty,' in the 14th Amendment, is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles
as they have been understood by the traditions of our people and our
law. It does not need research to show that no such sweeping condemnation
can be passed upon the statute before us. A reasonable man might think
it a proper measure on the score of health. Men whom I certainly could
not pronounce unreasonable would uphold it as a first instalment of
a general regulation of the hours of work. Whether in the latter aspect
it would be open to the charge of inequality I think it unnecessary
to discuss.
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