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Post by Thomas BeckPost by dr.narcolepsyhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=198&inv...
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Edwin - please forgive me, but is it possible that your link doesn't quite
work? I get a "no such case exists," and I'd really like to read it.- Hide
quoted text -
Same experience for me.
Tom
Sorry. Maybe this will get through! It might be better to copy it and
paste it into a word processor to be able to read it clearly.
198 U.S. 45 (1905)
LOCHNER
v.
NEW YORK.
No. 292.
Supreme Court of United States.
Argued February 23, 24, 1905.
Decided April 17, 1905.
ERROR TO THE COUNTY COURT OF ONEIDA COUNTY, STATE OF NEW YORK.
47
*47
48
*48 Mr. Frank Harvey Field and Mr. Henry Weissmann for plaintiff in
error.
Mr. Julius M. Mayer, Attorney General of the State of New York, for
defendant in error.
52
*52 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
53
*53 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
54
*54 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
55
*55 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
56
*56 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
57
*57 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
58
*58 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.
59
*59 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
60
*60 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
61
*61 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
bakeroom, 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
62
*62 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 Constitution.
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. What 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,"
63
*63 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
64
*64 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
65
*65 the County Court for further proceedings not inconsistent with this
opinion.
Reversed.
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY
concurred, dissenting.
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, both 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, 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: "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 every one, 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
66
*66 in Allgeyer v. Louisiana, 165 U.S. 578, 589. 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).
So, as said in Holden v. Hardy, 169 U.S. 366, 391: "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 the employes 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 of
Davidson v. New Orleans, 96 U.S. 97, and Yick Wo v. Hopkins, 118 U.S.
356, 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 require, but what measures are necessary for the protection
of such interests.' Lawton v. Steele, 152 U.S. 133, 136." Referring to
the limitations placed by the State upon the hours of workmen, the court
in the same case said (p. 395): "These employments, when too long
pursued, the legislature has judged to be detrimental to the health of
the employes, 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, 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
67
*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, `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, Iron Mountain &c. Ry. v. Paul, 173 U.S. 404, 409, and in
Knoxville Iron Co. v. Harbison, 183 U.S. 13, 21, 22, it was distinctly
adjudged that the right of contract was not "absolute in respect to
every matter, 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.
68
*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, supra, 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;
Minnesota v. Barber, 136 U.S. 313, 320: Atkin v. Kansas, 191 U.S. 207,
223. 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.
McCulloch v. Maryland, 4 Wheat. 316, 421.
Let these principles be applied to the present case. By the statute in
question it is provided that, "No employe shall be required or permitted
to work in a biscuit, bread or cake
69
*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 employe 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 employes 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, supra. 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, supra; or that it is not
promotive of the health of the employes in question, Holden v. Hardy,
Lawton v. Steele,
70
*70 supra; or that the regulation prescribed by the State is utterly
unreasonable and extravagant or wholly arbitrary, Gundling v. Chicago,
supra. 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, supra. 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
pale-faced 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
71
*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, 8 hours; in Great Britain, 9; in
the United States, 9 3/4; in Denmark, 9 3/4; in Norway, 10; Sweden,
France and Switzerland, 10 1/2; Germany, 10 1/4; Belgium, Italy and
Austria, 11; and in Russia, 12 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
72
*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
73
*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 Fourteenth
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. A decision that the New York statute is void under the
Fourteenth 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 well-being of their citizens. Those are matters which
can be best controlled by the States.
74
*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 employes 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 employes 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 Fourteenth 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
farreaching 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.
The judgment in my opinion should be affirmed.
MR. JUSTICE HOLMES dissenting.
I regret sincerely that I am unable to agree with the judgment
75
*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 Post Office, by every state or municipal institution which
takes his money for purposes thought desirable, whether he likes it or
not. The Fourteenth 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. 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. 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. The decision sustaining an
eight hour law for miners is still recent. Holden v. Hardy, 169 U.S.
366. 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.
76
*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 Fourteenth 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 installment 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.