People v. . Lochner

145 People Loohner. of case. Rep.] Statement N. Y. right, city’s questions, relating consider other

I water á of means to this procuring or resort authority, recog- and is clearly no exists discussion. require supply, authorize acquisi- charter nized those provisions, of public real the satisfaction municipal of estate for tion there- or claims, resulting and the damages, needs payment 484, (§§ 485.) from, thereupon. with costs. affirmed, should

The judgment Ch, J., (and Bartlett, Martin Vann, Parker, absent. J., concur; JJ., result), Haight, Werner, affirmed. Judgment People v. Respondent, York, the State of New

Joseph Lochner, Appellant. op Restricting — Labor Law Hours Constitutional Law Provision op 8 Labor Bakeries Constitutional. 110 of article of the Section (L. 1897, employe 415), providing Law shall be Labor ch. “No biscuit, permitted bakery.or required or work in a bread or cake con- week, fectionery sixty any more hours in one establishment than more day, purpose making a ten hours in unless for the shorter than week; day day in any on the last more hours one week work nor per day average days than will make an hours the number of ten for work,” during employe such week in which shall is an exercise health, police power relating to the provision no therefore violates State or Federal Constitutions. Loohner, 120, App. affirmed. Div. 1903; 12, 1904.) 16, January (Argued October decided Appeal Division of the Appellate judgment Court fourth entered judicial department, Supreme 1902, October which affirmed the Oneida judgment Court aof misdemeanor. County convicting so far as are stated facts, material, opinion. William 8. Madlde and M. Lindsley Smith appellant. The demurrer should have been sustained first

Ué v. Lochneé. .

Points counsel. [Yol. second that more than crime is in a grounds, charged count. Crim. Pro. 279; Penal (Code 278, Code, single §§ 110 3841; v. N. Y. v. 314; People McCarthy, People § 38 v. 135 Y. Hun, 107; 459; Upton, People Tower, N. v. 2 v. N. Y. Cr. 21 Cole, 110; People Rep. People Stock, Misc. 14 147; v. Misc. 31; Rep. People Sebring, Rep. People v. 166 Y. The Hartwell, N. demurrer should have been 366.) sustained that the facts do stated not constitute upon ground Const, Const, a crime. 1; S. art. N. Y. art. 6 14; ; (U. § § v. 4 White v. Porter, Hill; 140; 5 Barb. Taylor White, 474; v. 20 Barb. 13 Toynbee, v. People 198; Wynehamer People, N. Y. v. 378; Warren, ex rel. Hun, 120; 77 People People v. 144 N. Y. ex rel. Beck, 227; Coler, v. 166 N. Y. People 1.) Section of article 110 8 of the Labor Law for the void reason that interferes with the freedom of individuals to a enter into contract with one another. v. O. C. R. (People Co., C. 175 N. Y. 84; v. N. Budd, 15; 117 Y. Mat People ter 98 Jacobs, N. Y. v. 98; N. Y. Hawkins, 157 People s ex v. rel. 166 Y. 14 1; People N. Power v. Coler, ; Shep 30 How. 8 ; Pr. v. L. ard, St. 58 Ark. Co., 407; Leep Ry. Ex 85 Cal. v. Kubach, 274; State Ohio Dec. parte Norton, 7 5 354; Ohio N. P. Ritchie v. 183; 155 Ill. People, 98; v. Godcharles St. 113 Penn. State v. 431; Goodwill, Wigeman, 33 W. Va. 33 179; State v. F. C. W. Va. v. Co., 188; State 115 Mo. 110 of Loomis, Section article 8 of the 307.) Labor Law cannot be exercise of upheld proper under claim it is health measure. It does not its terms to refer to the matter of health at all, pretend there is no reasonable connection with health. 98 N. Y. 110 v. (Matter Jacobs, ; Gilson, People 109 N. Y. v. Ritchie 155 Ill. v. 401; 98; Colon People, 153 Lisk, N. Y. to fix the Labor Law 188.) attempts hours which shall aas work and allows regarded day’s extra hours to be all worked for extra trades compensation bakers. bakers are callings, except Thereby unjustly discriminated and section 110 said does not law against, extend to them the same rights privileges enjoyed 147 People 1904] v. Loohneb. Opinion Court, per Pabkeb, Rep.] Oh. J. If. T. Low v.

others. 21 Col. Law, 14; Eight-Hour (Matter of W. 41 v. 33 Va. Co., 127; Rees Pub. Neb. State Goodwill, There is an because discrimination unjust 179.) illegal (Peo are conferred individual bakers. privileges special v. 149 N. Havnor, ple T.195.) Qurtvn herein indictment

Timothy respondent. v. v. sustainable. 106 N. Y. West, 293, 295; People (People 574; Y. 422; 110 N. Y. v. N. Weldon, King, People 46-49 v. Burns, Div. ; O’Malley, App. law in was enacted to Hun, 53 protect 274.) question the health and of the by sanitary safety public, regulating establishments of condition of bakery confectionery of the state within the -the comes regulation T. v. 143 457; state. Church United U. S. (H. States, v. 643 v. West, ex rel. Div. ; 78 People Sturgis, App. People 293; 94 v. 106 N. Munn v. S. Illinois, 113; Y. U. People 14; v. Budd, 132; N. Y. 141 N. Y. Ever, 117 People ; Y. v. v. 74 N. 523 O’Reilly, People Rosenberg, Bertholf ; 415 v. 145 Y. Rector, etc., 138 N. Y. Health N. Dept. 42.) an has that The state hours labor regulate right and one week in a business shall perform day employee Havnor, v. N. that is or 149 unhealthy. (People dangerous rel. 144 N. 535 etc., ; Y. ex v. Y. Hol 201; Warden, People v. Co., v. S. O. C. R. 175 den 169 N. C. 381; Hardy, rel. 166 N. Y. The law v.Coler, Y. ex 87; People 25.) N. all situate, affects alike none persons similarly v. discriminated are, therefore, (People unjustly against. N. Y. Havnor, 205.) is under Defendant’s conviction sub- Ch. J.

Paekeb, Penal which makes violation 3842, Code, section 3, division 1897, a misdemeanor. The Laws VIII, article chapter. Division. affirmed Appellate judgment for a reversal article VIII ground Defendant urges — as we shall see later, be, on face purports — state offends against police power exercise [Jam, Lochnek: Court,

Opinion Pabkeb, of the Oh. J. [Vol. first section of the 14th amendment to the United States Con- stitution. That section state shall make or “No provides enforce which shall immuni- law or any abridge privileges ties of citizens of the shall United state States; any .nor person of life, or without due deprive any liberty property, nor law, within its process any deny person jurisdiction of the laws.” It is also claimed that the equal protection statute violates those of the State Constitution provisions which declare that “No of this state member shall be dis- or franchised, deprived any rights privileges secured to citizen unless thereof, law of land, ” or the of his art. 1, nor be judgment peers (Const, 1), § deprived life, without due liberty property process law.” art. (Const, 1, 6.)§

The first eases in which the 14th amendment is discussed the United States Court are the House Supreme /Slaughter Gases U. S. wherein is (83 the Louisiana stat- 36), challenged ute the removal of noxious houses from authorizing slaughter the more New and their Orleans, densely populated part location whore could least affect the health and comfort end exclusive people, granting corporation for 25 maintain to houses within 3 right years slaughter par- ishes, and 200,000 between 300,000 containing people, New Orleans. This is held to be including police regulation' for the health and comfort of the and, therefore, people, within the of state and not affected power legislature, by the 14th which the court is not intended to amendment, says interfere with the exercise of the states. police power by

In v. Barbier U. (113 S. Court Connolly 27) Supreme has before it a San Francisco ordinance work prohibiting p. laundries within defined from 10 m. to 6 territory a. m., claimed to be the 14th to amendment. The repugnant court rules the ordinance is well within the police power, and in the course of the Neither the amend opinion says: — ment-—-broad and nor other comprehensive was to interfere with the of the amendment, designed power sometimes termed its state, police power, prescribe regula- v. Loohkee. Court, Pabkeb, per Opinion Oh. J. Rsp.] T.H. education morals, health, good

tions to peace, promote as to the indus- so increase and to legislate order people, its wealth add to resources tries of the state, develop 31.) (p. prosperity.” States United There are cases many interesting which of different states statutes Court Supreme sustaining amendment, to the 14th terms seem repugnant the states. within the court declares be a railroad liable are statutes them company declaring Among another to an caused employee although damages at double the damages U. S. employee (127 205); fixing when due railroad value stock killed, neglect loco- to maintain fences U. S. (129 26); requiring company that the rail- licensed, motive be providing engineers thorn road fees of examination pay company employing cars to heated otherwise than U. S. (128 96); reqúiring S. stoves on railroads over miles U. (165 length 628); railroad com- for immediate payment wages by providing U. S. (173 discharged employees prohibiting panies 404); to sell U. S. for inspection options grain (184 425); providing at owners U. S. one of mines expense (185 203), all void contracts for sales of stocks on margins (187 declaring U. S. 606).

I shall call attention one case, to but other special namely, U. S. In that case Holden court Hardy (169 366). reviews at cases under 14th many length arising with the House cases. amendment, Slaughter beginning that “The The case involves a Utah statute period providing in all mines or workingmen underground employment shall be cases of hours day, except workings eight life or imminent where emergency property danger.” is made a misdemeanor. conviction Violation under that is affirmed the United States Holden statute in that case that Court. It is defendant Supreme argued by (cid:127) or the statute has no relation to the health of safety pub or if in a remote affected, so, lie or the only very persons while effect direct and is interfere to degree, principal v. Loohneb.

Opinion Court, per Pabkeb, [Yol, file Oh. with the and. liberties of the rights parties; contracting to contract contains three essential right and indispensable elements, and the United States Consti- guaranteed protected by tution, “the namely, and right employer employee agree the character of the service to be upon (1) performed, (2) amount for such and the number of hours paid service, (3) ” which the service is to that the per day during continue; or destruction of one element is abridgment destruction of the whole of said abridgment that the contract; right statute and immunities” in that it abridges “privileges and the deprives freedom employer employee perfect and unmolested a liberty lawful vocation a lawful pursue that the manner; in that rights employer employee direction were unlimited before the of the 14th adoption amendment and that it since its is adoption beyond power state to make laws any abridging destroying — This latter contention which if sustained would rights. all further prevent development practically — on the states is overborne the court. part cases court since the Many passed upon by adoption 14th amendment are cited illustrations furnishing tending the boast óf the devotees of common justify law, of established law has application principles legal will been, and continue to be from time to time so developed as to meet the conditions of our diversi- ever-changing widely fied and business interests. The court rapidly developing Mr. from Justice Matthews Hurtado quotes California “This U. S. (110 530): flexibility capacity is the boast and excellence of adaptation peculiar growth * * * the common law. The Constitution of the United true, was descendants of ordained, States Englishmen, inherited the traditions of law who ; English history made for an undefined and and for was future, expanding and to be nations gathered many people gathered * * * There nothing Magna many tongues. charter construed as broad Charta, public right rightly of all to exclude the best ideas law, systems ought 151 v. Lochnek. Court, Pabkeb, Opinion per Oh. J. Eep.] of the N. Y. the characteristic of

and of and as it was every principle age; fountain of the common law to draw every inspiration assume that the sources of its we are not to supply justice, exhausted. On the we shall have been contrary, expect our own situation the new various of experiences will it into new and not less useful mould and system shape the neces- The court illustrates forceful forms.” by examples in conditions. decisions of of recognizing change sity legal attention to the that in the of After fact early history calling there was no occasion for any protection country special as we were almost of class, purely agricultural particular it instances coal and the manufacture of iron. country, mining When these industries in Pennsylvania began early carried on such a limited such were they way, that no laws were deemed neces- methods, special primitive but since that time have sary they protect operatives; in that states, such vast and other assumed proportions to the and life so of those dangers safety developed many laws to meet such have them, exigencies engaged It calls attention to necessaiy. become many protective statutes enacted different states for fire many providing factories and other hotels, theatres, large escapes buildings; to obviate the inci- boilers; appliances inspection dangers railroad and steamboat dent to ; transportation protection accidental shor- machinery contact; dangerous against shafts; ventilation means for in mines ing up signaling elimination as far as for fresh air; possible dangerous safe means lowering employees hoisting gases, that statutes have said mines. It providing safeguards states; enforced courts of the several been repeatedly far as assumed, informed, so we are and, their validity S. held be constitutional” U. (169 have been uniformly means courts which, course, 366, 394), that such these decisions hold statutes states making several citizens privileges do not rights deprive nor them of the Constitution, deprive property guaranteed State law, every without Constitution con- due process Lochner. Opinion Court, Parker, Gh. J. tlio [Yol. n tainssuch a or its Of such illustrations provision equivalent. the court further for are mentioned only says (p. 387): They the of to the that other attention purpose calling probability of no less made in the changes be may future, importance that while the cardinal are immutable, principles justice the methods which is administered by justice subject constant and that the Constitution of the fluctuation, United is States, which and to a extent necessarily inflexible large difficult of should amendment, not be so con- exceedingly strued as to of the states to so amend their deprive power laws as to make them conform to the wishes of the citizens as deem for the best welfare without they may bringing them into conflict with the law the land.” This supreme — broad-minded view which is characteristic develop- ment of law this court since the of the great adoption — 14th amendment should, and will doubtless be followed by of the courts several states whenever called to deter- mine whether statutes of State offend provisions against similar Constitutions or to the 14th equivalent provisions amendment. The cases and the of the cited, court, reasoning to which but brief reference is here demonstrate that made, this statute does not offend the 14th amendment, against follows that it is not necessarily repugnant equivalent in our State Constitution. provisions This court all its has maintained the throughout history same as that taken States position United Supreme Court. authorities could cited in Many pi support but none need assertion, be for are all one direction. bounds of impossibility setting power has to this time up court prevented it, attempting and the it is Gray reason for well stated Judge v. Ewer N. Y. He is if (141 “It 129, difficult, 132). says: not to define the aof under impossible, or, police power state; recent where the- constitutional decisions, judicial say boundaries its exercise is a are to be fixed. limiting essential to be conceded to state in the interest the, of its citizens. We when welfare it that gay v. Loohnek. Court, per Parker, Rep.] Opinion N. Oh. Y. is the use in the direction of so private

operation regulating action, as manifestly of so property, restraining personal or to tend to the protection secure, comfort, prosperity, and the is no constitutional violated, community, guaranty In case legislative not transcended.” authority Code, of section Penal questioned. constitutionality as dancer That section makes a misdemeanor exhibit female child under The court denies years age. our because it statute violates Constitution deprives mother, arrested, rights privileges person her secured to Constitution. by v. ex rel. Nechamcus etc. N. Y. Warden, In 529) (144 Laws is constitutionality 1892, chapter challenged. for of master The act examination provides registration makes it a misdemeanor for any person plumbers, in that trade without such This court registration. engage statute to holds the be within of the power police legisla not to the Constitution. ture, and, therefore, Judge repugnant “ Gbay in the There has much been opinion says (p. 535): a what is valid discussion exercise of subject the state enactment legislative police power through little this there is to be added to what and other courts have extends to said. protection persons within the In that state. order to secure property be to restraints and burdens they subjected by protection, If act is -a valid and acts. reasonable exercise legislative of the then it must state, of the be submitted to, police power of the and to a measure protection designed some real or from a state secure against danger, anticipated, life which modifications our social or commercial of things The natural and the life, have about. right liberty brought an not absolute must right. yield happiness pursuit health or welfare, whenever the concession demanded by his of the state. The individual must sacrifice prosperity if or desires the sacrifice is a interest necessary particular as a whole that shall be benefited. society order organized condition state, which, That is fundamental Lochnee. Opinion Court, per Parker, Oh. J. [Yol. end, reaction a accomplishes from which by general good, n individualmust also benefit.”

In Health Department etc. N. Y. Rector, (145 32) court considers of the Hew York Consolidation provision Act that tenement houses erected shall fur requiring already “ nished owners whenever by water, shall be directed so to do the board of health,” in sufficient quan at one or more on each tity floor, or intended places occupied to be one or more families.” The health occupied by depart ment served a notice defendant to requiring water, supply commanded statute, it. owned Defend buildings ant refused do so, action was the health brought by Defendant department compliance. contends compel that case that the statute of the State- violates provision Constitution which declares that no member of this state shall “ be of life, without due deprived liberty property process of law.” This court holds that the statute does not offend but that it Constitution, is valid exercise of the against virtue police power; legislature, by power, direct that can or alterations shall be improvements made at the houses owners’ when it existing expense clearly appears it in that tends some and manner to plain apju-eciable guard and and the that a ; need public not be protect compensation to the in such made owner the effect case, of the act not being to but to its use private property, appropriate simply regulate the owner. the enjoyment Judge writing Peokham, “ of the court, Laws and of opinion says (p. 43): regulations a disturb the of nature, police though they may enjoyment individual are not unconstitutional, no rights, provision though is made for for such disturbances. do not compensation They use, for but private appropriate property public simoly regu the late its use and owner.” enjoyment by v. Havnor N. Y. is a case as near the (149 195) — line as to in border be found this state cer perhaps much nearer to it than the case 'under considera tainly very considers the in authorities this state tion. exhaustively The case the involves the consti- power. police bearing People Lochnee. Court, per Parker, Opinion Oh. J. Rep.] of the N. Y. Law, the Barber of is known as Sunday wliat

tutionality the busi- a to on carry makes it misdemeanor for any person the week ness a on first except or work of barber the day where in and the of New York Saratoga, city village in until o’clock on one such business or work carried held constitu- The statute is to be afternoon of day. a because valid exercise tional, power. examina- a careful is written Yank. After opinion by Judge tion he authorities question presents underlying is whether this vital therefore, way (p. question, 201): “ has a rea- real of the statute under consideration purpose with the welfare or connection health, sonable public safety.” After act to require object stating as as a of rest observance of not a Sunday, holy day day, — he with buttressed recreation, proceeds argument state answer the this other (cid:127)—to authority jurisdictions in the affirmative. In the he course of argument to of civil- the common says (p. 203): judgment According ized men, reasons, public economy requires, sanitary rest selected labor, day general day naturally is that citi- sacred number regarded greatest inter- zens, this causes the least inconvenience through It is of the state ference business. interest have robust, citizens, healthy strong, capable self-support, arms, resources bearing adding country. this Laws effect citizen from purpose, by protecting his overwork and of rest to restore general day requiring have his connection health, obvious strength preserve * * * with the welfare. The statute under dis- tends to effect this because cussion result, persons requires kind hours each of business takes many engaged refrain from seven. on day, carrying during day intervals, at This affords an opportunity, regular recurring and the both the needed rest, employed, employer to and the at not have the least, observe latter, power may * * * of As bar- rest without the aid day legislation. than work more hours each most bers men, day generally v. Lochmeb. Opinion Court, of the Parker, Oh. J. [Vol. well have that was concluded legislation for the health.” their necessary protection that force of to pertinency argument controlling under here will manifest when consideration come we to an examination of the statute.

Ho can authorities be found in this court which conflict with the cases to which I called have attention. Rodgers' Case H. T. cited in I cannot (166 but why opposition, 1) see. in that not even considered case. police power The defense that of the statute which is condemned portion as unconstitutional because it in all con- stipulation requires tracts with the state and the contractor municipalities shall rate of at least,” “pay prevailing wages being on rested that the state as can do ground (1) proprietor do, what individual can insist proprietor namely, upon any reasonable in a as a contract condition for provision doing ;work that the state is not toas contracts (2) proprietor only for work for the of the entire also as benefit to con- state, tracts for authorized it for the work various subdivisions the state made for convenience administration ; (3) it violates no hence Constitution. provision an examination of a shown few of the Having leading to the authorities the decisions power relating police court are in with those of this the United States harmony out some Court, of the specially Supreme having brought in those decisions for purpose presenting argument vast of that we next come scope power, something In what should court spirit question, approach a statute said hand on consideration offend and on .the other Constitution, to be proper against ? exercise The courts are confronted with the frequently temptation their for that of the to substitute A judgment legislature. within the statute, though plainly legislative given power, so to a sound seems repugnant public policy strongly set aside the court to instead of statute, tempt waiting, until our institutions can spirit people require, the obnoxious their statute. representatives repeal compel People v. Lochner. 1904] Court, per Parker, Opinion Ch. J. Rep.] of the If. Y. eminent writers of this

In country gave the history early set the of the courts to fear that to the power expression of the chosen to legislate aside the enactments representatives a in our the weak the in end point would prove people because difficulty keeping system, governmental bounds. within exercise of such legitimate power great that the courts must be said far in our So history judicial in conservative have in the main been passing legisla but tion as unconstitutional, occasionally, espe attacked is one on the border is line, when a case quite possible cially unwise that the of the court legislation judgment side of the decision to carry wrong may operate is that the courts have extended line. Certain it border greatly administrative acts that were their over many jurisdiction not to cases for the court present pass supposed originally a have and in that courts come very way play upon, administration. Some in state and municipal important part on that Matter of our views subject given expression Guden N. Y. (171 535). the mental attitude with which

Now when considering of this it is an examination well court should begin question, to have in mind breadth and not only great scope it as control over expressed police powei*, legislative it is from which we some opinions quote supra, in mind some of the of this well to have court also expressions should the consid- court way approach the constitution- eration of such this, involving of a statute. ality , v. N. Y. King (110 Judge says, Andrews 418 “ this means of exercises By 423): * * * over matters common weal. affecting supervision be exerted whenever necessary secure peace, morals and welfare of the com order, health, good general its exercise within constitu munity, propriety tional limits is matter discretion purely legislative which courts cannot inte7'fereP Gray Kechamcus’ Gase {supra): Judge says, Loghneb.

Opinion Court, Pabkeb, Oh. J. [VoL courts should assume that intended always legislature health, its enactments ends to those comfort promote [public and if the act of two admits safety], constructions, should be it which it and it to sustains makes given applicable in futherance of the interests.” N. Y. 529, (144 536.) “ Whether the is us is wise not for to consider. legislation The motives and the inducements held out to actuating are not the legislature courts, subject inquiry by are bound to that the assume law acted with a making body to desire Its enactments must promote public good. do not stand, contravene the provided always Con and the test of stitution, is one of constitutionality always — else. But in test the courts nothing applying must mind bear is their to the force of duty give law to act of the whenever it can be so legislature fairly construed and as to avoid conflict with Constitu applied tion.” v. 161 N. Y. (Bohmer 390, Haffen, 399.) “ there room Where for two both constructions, equally obvious reasonable, court deference must, to the assume that did state, not overlook the legislature * * * the act provisions Constitution, designed to take effect. Our is to therefore, construc duty, adopt tion violence to the fair which, without doing meaning words statute into with used, brings harmony of the Constitution.” v. 112 provisions (Supervisors Brodger, N. ex rel. 261, 268; S. Burrows v. People Supervisors of Y.N. Co., 236, 17 ex rel. Bolton 241; v. Orange People 55 Co., N. Y. Albertson, 50, 54; Matter Gilbert El. Ry. Matter N. Y. 361, 70 N. Y. & L. I. 367; Co. Bridge v. 148 N. Smith, 540, Y. 551.) court is inclined so construe the statute as to vali date it. v. Trust 96 Y. Equitable Co., 387, N. (People 394; v. ex rel. 108 N. Sinkler Y. Matter N. 1, People Terry, 7; R. Y. 327, 342; Y. El. R. N. ex rel. Co., 70 Killeen People 564, 109 Y. v. Rogers N. 567 Common Council Angle, ; v. Lochner. Parker, Court, per Ch. J. Opinion Eep.] Y.N. v. Rice, ex rel. Carter 173, 181; Y. 123 N.

Buffalo, 135 N. Y. 484.) “ inbe must be act of presumed legislature Every until the clearly fundamental law contrary harmony v. Durston, ex Kemmler rel. made (People appear.” N. Y. 569, 577.) “ declared void can be an act of the Before must manifest.” the conflict be the Constitution, repugnant 139 N. Y. Stilwell, 337, 341.) (Matter of as to can so construed and the Constitution If the act and each can be stand, both given proper enable it is the of the court office perform, duty legitimate Y, 138 N. such construction.” (People Rosenberg, adopt 410, 415.) in that under consideration case held to be

The statute as is statute considered within power, case. following “ to the statute It is not validity necessary penal should declare on the face of the statute the the legislature for which was enacted.” v. West, or (People purpose policy 106 N. Y. 293, 297.) considered the authorities bearing upon subject

Having at than exercise of could of the police power greater length it not for the different view that in were obtains be justified as to of the this court the authority legislature pass at a few in authorities statute having glanced question, ‘in the frame of mind which the court should indicating of the of the the consideration constitution- approach (cid:127)— we an act of come to the considera- legislature ality statute in aided of the estab- tion question, principles States Court and the United courts lished by Supreme reference has been made. this to which state, whole statute, I notwithstanding quote length, at be once determined its mere read- order was to subserve, whether purpose ing under the measure, some public good police state. People Loohner. Parker,

Opinion Coxxrt, Ch. J. per [Yol. “ARTICLE VIII. Confectionery Bakeries Establishments. “ 110. Sours labor in balteries and confectionery § shall establishments.-—No or employee required permitted in a work bread or cake or biscuit, bakery confectionery than more establishment hours one more or sixty any week, than hours in ten unless for any day, purpose a shorter work the last nor on day week; day making than more hours one week will make of ten average hours for the number of such week day days during shall which such work. employee “ 111. and room.s Drainage plumbing buildings § balteries.— All or rooms buildings occupied occupied bakeries, or cake shall be bread, drained biscuit, pie in a manner conducive to healthful plumbed proper shall air thereof, condition be constructed with sanitary windows or sufficient insure ven- shafts, pipes, ventilating direct drain- tilation. factory inspector may proper and ventilation of rooms buildings. age, plumbing not now used for a shall here- basement, No cellar bakery unless the shall com- so or used, after be occupied proprietor this article. the with sanitary ply provisions “ utensils wnd rooms, 112. Jieguirements furniture, § for manu- room used products.— Every manufactured facture of shall at flour meal food be least or eight products if deemed the fac- and shall necessary by feet in have, height floor of cement, constructed impermeable tory inspector, wood or an additional laid in cement, flooring or of tiles walls such linseed oil. The side with saturated properly or wainscoted. inspec- be factory rooms shall plastered whitewashed, to be side walls ceiling tor require may also wood in months. He require three may at once least utensils The furniture and walls to be such painted. work of and not cleansed as to be prevent readily so shall be arranged The manufac- room. of any part cleaning proper shall be dry kept food or meal products tured flour and other facili- shelves floors, that the so rooms arranged airy Loohheb. Parker, Court, per Oh. Rep.] Opinion of N. T. Ho the same can be cleaned. domes- for

ties properly storing in a allowed remain room shall be animals, cats, tic except cake or room as a or biscuit, bread, any used pie, bakery flour or meal are stored. snch where products bakery rooms and closets Wash sleeping places.-—Every “§113. / wash-room be with such shall bakery provided proper from the water-closets or bake-room, water-closet or apart such food the manufacture of con- rooms where product or shall earth-closet, and water-closet, no ducted, privy ashpit with the or bake-room of be within connected directly restaurant. hotel or public bakery, “ in a as a shall room bake-room. Ho person sleep occupied in the shall bakery places persons employed Sleeping the rooms where flour or meal food be products separate are are manufactured or stored. If on sleeping places are same where such stored manufactured, floor products and order them or sold, inspector inspect factory put in a condition. sanitary proper 114. bakeries.— factory Inspection inspector § If it cause all to be be found shall bakeries inspected. upon the bakeries so are such constructed inspected inspection with this provisions conducted compliance chap- shall issue certificate to the ter, inspector per- factory snch bakeries. sons or conducting owning alterations.— If, Notice repairing opinion “§ alterations inspector, required upon factory in order to used bakeries, comply premises occupied a written notice shall article, of this provisions or lessee of such him owner, served by agent prem- such mail, either alterations to ises, requiring personally after stich altera- service, be made within sixty days made tions shall be accordingly.” are interested

That the bakers’ having generally and in establishments wholesome and confectioners’ cleanly and on account of, of, this apprehension day appreciation death, and disease microbes, which cause beyond question. was done in the the baking Hot ago largely many years v. Lochueb. Court, Pabkbb, Opinion of the Cb. J. [Vol. in a in but now of the houses cities ; family large percentage the baker is relied to a and on extent to furnish villages large well cake and as while bread, biscuits, pie, confectionery, over roads the bakers’ twice week country many wagons go the or more to farmers and of small settle- supply inhabitants ments it with their wares. Indeed can be said that the éafely is more the baker for the family dependent to-day necessaries of life than other source That upon any supply. so it within the of the to so being police power legislature of that conduct business as to best regulate promote the health of the And to that end the protect people. legis- lature undertakes to statute which on bears- provide—by an face evidence of draftsman intelligent acquainted — conditions in such establishments dangers unsanitary for rooms proper drainage plumbing.of building for such occupied purpose.

Is there room doubt that the sole purpose legisla- in ture the use of for cellars bakeries unless the prohibiting first with the of this occupant complies sanitary provisions article is to use of the food made protect public that thrive darkness and dangerous by unclean- germs ? ness Is can one sole possible any question is the purpose legislature safeguarding public health when provides floors, sidewalls of ceilings material as that such be they may readily cleansed; compels of flour or meal food keeping products dry airy so facilities can rooms, arranged storing properly of domestic cleaned, animals within prohibits keeping ? rooms And will one such any motive which question “ of a induced water-closet, prohibition earth-closet, privy * * * - within or connected with the ashpit directly ” hotel or bake-room restaurant ? If any bakery, should not, anyone why object in the same article and the scheme providing part that “Ho shall be employee work” required permitted an establishment more than hours sixty of ten hours for each week,” It is average day. working v. Lochner. 1904.1 Court, Opinion per Parker, Rep.] of the Ch. J. 3ST.Y. that assume from this statute as whole

but reasonable to had in mind that the health and cleanliness of legislature work-rooms, as well as the cleanliness of the was of workers, that a man is more to be the utmost importance, likely than when and not when overworked, careful and well, cleanly for careless and exhausted makes- slovenly by fatigue, dirt and and tends to disease. habits, — —it there is and who can doubt for this If opportunity had the as it then to enact did, view, legislature to sustain its action as the courts bound justified by as we see from the authorities referred to earlier power, in this opinion.

I hear advanced for the of con- argument purpose the mind that the of this is not to statute object pro- vincing tect the and that is that article is to be VIII public, argument Law. it is said it is a found Labor labor Therefore, not a health law. law, that Does label is, question presented by argument

or the of the statute Does a statute body prevail? calling names it its and real intended character ? If a deprive statute the course principally banking happens, relating as an to be article the General codification, incorporated does cease to on the busi- Law, Corporation operate banking that ness ? I submit Avithout ansAver argument questions themselves. for the however,

Assuming, purpose argument only, label substantial importance the obvious then I statute, accepted against meaning that article Avhich Bakeries VIII bears own is: title, say Establishments.” All that is contained in Confectionery relates to article bakeries establish- confectionery other ments and their to no whatever. conduct, subject it is entitled. Therefore, fully, harmoniously appropriately as it is have from a inasmuch we obvious, seen, Again, that the is to statute, mere legislative purpose reading must assume— n even if the benefit the we object public, is not to the hours of Avork limiting employees Lochnee. Court, Parkee,

Opinion Oh. J. [Vol. who take the wares the health of public, general protect n — to that the intends protect made such legislature by employees in such establishments; that, the health of employees has conclusion that it, sufficient to it reached some reason not to be more this character men in work of employed ought — that so a blow of ten hours than day. being average statute can be taken more restricted view that no certainly — that it we find the action of those who would destroy under the author- is within the not only police power legislature this and of court. States, state, this ities of the United to attention has been called Holden's Case already Special it a statute misdemeanor to U. A Utah S. making (169 366). “ 8 man than hours more per- day underground employ ” is and a conviction thereunder sustained, mines or workings Court, the United States on Supreme ground upheld, of the state such a it to that is within pass police — have case which I made That statute. interesting — in far is so extended reference point controlling supra and should concerned, the 14th amendment as controlling so far as of our in this court State equivalent provisions are concerned. Constitution also be under Havnor's

It must Oase held, authority — be assumed from the even though may reading {supra) that is to the statute object protect in such more than establishments ten working employees — and, it is within there- hours power, day Constitution. The not State statute fore, repugnant it a makes misdemeanor that case which passes upon carry of a the first of the week, business barber on day on is affirmed of conviction under law this a judgment statute under consideration has 'reason- court because welfare or with health, connection able safety.” hold in that this court could so case must so if Certainly of the statute even under construction this, hold £lie affected the fact that to it who are article those would give with other Laws, General VIII, grouped chapter known the Labor Law, articles, compilation being v. Lochnee. Gray, Opinion per Rep.] N. Y. Law with articles in the Domestic entitled,

instead of being or in the Public Health Law Beef Pork, and Meal, Flour Practice of Medicine or Adulteration, with articles the like. authorities workers bakers’ medical classify many

Again cutters, stone establishments potters, or confectioners’ other workers whose necessi- file occupation grinders dust and hence the inhalation of tates particles, predis- medical members published consumption. poses vital statistics stand- bearing upon subject opinions under section review as one alone pro- fully justify ing in it of the such establishments, the health employees tect court to assume that the section was framed of this the duty full of the- also with of, not appreciation light only — medical of the authority bearing upon subject force and stim- attention, authority reasonably challenges .which of the ulates philanthropist. helpfulness an follows, therefore, The conclusion necessarily the statute in the of the authorities examination of light VIII, that the of article of it, cited, purpose every part in is to benefit the the provision question, including public; relation to the it has a reasonable public welfare, just is within and hence police possessed by power legisla- in violation of the of the court stated ture. But as if, duty — which is Case the construc- in (supra) adopt Brodger's violence to the fair without which, tion doing meaning the statute into with the words used, harmony provi- brings ” — we award to the title of a Constitution sions gen- it causes to overcome both the title eral law such potency of an article thus therein, and the making pro- provisions still we are to hold that it is law, a vision labor required within power. affirmed. should be

The judgment I concur with chief shall whose J. judge; Gray, in its I carefully expressed convincing regard opinion for us the first is, place, whether, question reasoning. v. Loohnee. Opinion per Gray, [Vol. its embodiment in the Labor we notwithstanding Law, may 'treat the as health law a statutory provision, and, question, if in the next we do whether its a so, enactment.is place, may reasonable exercise of the which state, police power courts should effect to. I am of the that its give opinion in the Labor Law furnishes no reason placed being adequate its those construction considera- limiting reading to laws tions, the interest appertain passed, strictly, from its labor; if, association with other provisions, pari a different and materia, disclosed. independent purpose To health its intended because it deprive operation, law is not found in the statute hook under that, kindred, title, would be, unreasonable and an my opinion, apply test If the court concludes that unsatisfactory validity. the intent of an enactment in some valid exercise the police is to some trade, regulate then, particular occupation, immaterial should under what clearly, quite heading to be classified in the statutes. not do appears would the will of the so and narrow nullify technical people upon consideration. I think we Therefore, beyond proceed, to the determination of the if ground, whether, a health the 110th law, section this article was Till reason- a able of valid exercise the and, therefore, If police power. alone, and unaccompanied stood unexplained by cognate to, I should incline the view that the enactment provisions, was unconstitutional. be held to fall within might, justly, which, of that class has received condem- legislation, judicial a nation as of the hours of the ; because, regulation employed, its would for be their the object appear protection against a exaction of amount of work for the disproportionate wages That be to would the of contract. infringe upon paid. liberty I think we must read the section-in connection with But those follow, and sections which then it is that we find immediately it to made certain that the of he enact- object legislative ment to the had relation conservation of the health. public that the Ve- with the perceive legislature dealing workings a a business conducted for the scale, upon calling employ- v. Locheteb. Gray, Opinion per Bep.] tí. Y. is affected public

ment of less and which laborers, more or sensibly that the food may, the sense interest, product the observance sanitary its healthfulness depend upon may rules Such regulations and precautions. precautionary conditions as the establishment involve, well, proper the work- of the normal insure the maintenance vitality environment. wdiolesomeness of general man, was animated We must body .that legislative pz’esumc welfare a reasonable intention to public promote effect to because it, and if the courts can tending give should, health, unhesitatingly, public guard inter- will not allowed, arbitrarily, so. be do Legislation under the of the citizen, liberty spe-' fere personal and therefore an exercise of the cious power, guise aas that our courts it is, supervise, judicial question, may of the to exercise power determination j>olice true It is ten- of some trade, restraint calling. of an excess of has been in the direction dency growing of this and courts paternalism government .in inter- hastened to other states have, rather, legislative uphold ference with the of citizens, an'y pre- pursuits 2>lausible welfare. The in furtherance text of general being has, in the broadest terms, Court recognized Federal Supreme the individual states to exercise police power power is to when the of internal promote by regulation; object health and comfort. To laws the reasonable safety, public men conceded the body govern legislative of such the establishment rules men, affairs of through better- conducive to regulations health lives, to the because ment, protection tending con- comfort property, persons protection more made has at times, broadly been, cession my 02)inion, than the conservative spirit of the courts, decisions But of will our democratic form justify. government the broadest have, and should the has, legislatuz’e internal exercise a regula- to power police authority the the safety direction of the tion, peace, protecting People Looheeb. Opinion per Vann, J. [Vol. the health of the I concede. In this community fully law, which restricts the hours of employés bakery working think I we establishments, confectionery fairly, may, perceive of the statutory reasonably promotive regulation, public because the master of an health, such establish- compelling ment to conduct it least manner, capable affecting his We not assume product prejudicially. may, unreasonably, that an too his work for health under the employé may long and that an conditions, and the impaired vitality possible diseases be the result. to development may If, organic obviate to the consumer’of the food possible consequences determines manufactured, interfere, lim- legislature by other hours of the I do' workman,' iting, among regulations, think not we should hold interference to be without reason. I concur the' result Vahe, reached the chief for the reasons : following judge, of the what it consider power legislature pass ” is health laws not but is bounded unlimited, duty to determine fair, of the courts whether act has a just relation to the reasonable welfare. general (Matter Jacobs, Gillson, 109 98 N. Y. v. N. 98, 108; 389, 401; Y. 149 N. Y. Havnor, 200.) was said As court Gillson case: “Under exercise enactment must have some relation to the comfort, the welfare of safety, society, and it must not be conflict the Constitution. The law allow the will not to be invaded under the rights property for when police regulation protection health, guise manifest that such not the it is object purpose * * * generally regulation. what laws and are needed determine regulations protect health and serve the comfort and public and if safety calculated, intended, its measures are convenient or appropri- exercise of its ends, ate discretion is accomplish not review.” subject judicial We have before us of the Labor Law simply part Lochkeb. Opinion per Vai-tk, Rep.] N. Y. in confection- the hours of labor bakeries

which regulates not sixty them to establishments exceeding by limiting ery for the making ten unless week and per day, purpose last of the week.” on the shorter work day day a model used as statute The draftsman of this apparently the Act” “The Bakehouse English passed Regulation in in he far Parliament but went beyond pattern statute the York labor, the hours of New applies limiting no act makes to all in while bakeries, employees English hours week, prohibits per day simply regulation under between years eighteen age employment persons five Victoria, at nine (26-27 cap. morning. night cleanliness Both acts similar to secure contain provisions 40.) used to the business, and ventilation of rooms on carry none therefrom, Avellas the apartments separation sleeping in of which are now called question. do not think can be sustained,

I regulation unless we are from common work- able say knowledge is an a bakery candy factory unhealthy employ- ing had ment. If such unhealthy occupation from to prohibit employers requiring permitting right more than number of their specified employees spend hours or week in such a command work, because per day interest of the health and would would be pro- welfare. As case we mote Jacobs took general notice of the nature and of tobacco judicial qualities (p. 113), in this case we take of the effect of so notice may judicial very fine flour and when inhaled into particles sugar lungs from heated of manufactories bread and atmosphere we resort candy. Necessarily subject considering of information as were to such sources open legislature. show that statistics those vocations which Vital require per- remain for of time in confined and periods sons long filled with some substance, heated foreign atmosphere into the to health and tend to is inhaled injurious lungs, life. Bakers and confectioners, shorten who, working during air finest dust breathe filled hours, constantly v. Lochneb.

Opinion per Vann, J. [VoI. flour and have a the most sugar, tendency consumption, terrible known to modern civilization scourge resulting in more deaths than ; other disease. (1 People’s Cyc. Mulhall’s Diet. 193 and Statistics, 683.)

Thus in the article on in volume 18 of the last edi- phthisis tion of it is : Britanniea said Encyclopaedia Occupations “ necessitate inhalation of as in particles, irritating the case of stone needle masons, workers minerals, grinders, are cotton, flour, straw, &c., hurtful, especially chiefly mechanical effects of delicate tissues pulmonary the matter inhaled. dSToless are car- prejudicial occupations ried on in a heated close as is often the case atmosphere, etc.” compositors, semptresses, goldbeaters,

inSo Alden’s title vol. Encyclopedia, consumption, occurs: Often the of following tailors, workshops “ printers, bakers and other businesses carried on close, ill-ventilated of numbers by nurseries apartments large working people of consumption.” We from few more out of authorities to the quote many “

same effect. certain that much done might health in this more attention improve respect by on of labor to the comfort habits of part employers those in more than are, who senses their one, ‘hands’ their sources of A certain kind of prosperity. improvement has, indeed, been effected already improved living classes last Still working during twenty years. well known and careful that the work- proved by inquiries bakers and other tailors, businesses carried shops printers, ill-ventilated close, on numbers apartments, by large in a are, workmen nurseries sense, of con- very aggravated * * * The cutters and sumption. needle-grinders owe their short lives to Sheffield con- appear notoriously on the inhalation of metallic sumption brought particles in the close and * * * their stifling atmosphere workshops. Even the causes of con- therefore, admitting, be in there irremovable, seems part sumption may practically much no reason to doubt be done to diminish might very Lochner. Opinion, per Vann, Eep.] N. Y. when well as to arrest its course already prevalence, due to the attention comfort

formed, popu- laboring their both their lation, pursuit dwellings International (4 286.) occupations.” Cyclopaedia, “ Particular (to consumption), occupations predispose such as constant inhalation of small occasion especially Johnson (2 Cyclopaedia, 488.) particles.” workers are Thus seamstresses similar tailors, especially is this true disease. More especially occupa- prone dust tions whose necessitates inhalation of performance * * dust act as irritants of particles particles. air fine structures which line the and vessels, passages inducing in to lead turn, chronic are liable which, changes, consump- tion.” Chambers (3 Encyclopaedia, 438.) “ tuberculosis favor- indeed, The bacillus of most finds, its existence conditions for in able squalor congested in foul close slums, atmosphere dusty workshops, (70 etc.” Review, courts, alleys, Fortnightly 308.) “A number the most efficient workmen very large in metal manu- works, cotton wool quarries, employed trades and other factories, many occupations print exposing air dust fall this to bad victims to infection.” them (194 Review, 444.) Edinburgh “ still show statistics that the Since from Phthisis mortality certain is much than in who follow trades greater people can there be no causal between doubt others, relationship disease and of dust the causa pulmonary occupation being * * * * * * In was demonstrated that causa/ns. n had kinds of been as hurtful, recognized two occupation long rise to mechanical or irrita- those that chemical viz.: 1, give air or fluff diffused dust, tion passages grit being those which are operatives atmosphere; through (The Lancet, vol. changes temperature.” abrup>t exposed 1345.) 165, p. “ in a a close atmosphere high temperature, Living more diseases, are especially lung phthisis.” bakers subject Science, of Medical Handbook Reference 276.) (5 v. Locheee. Opinion, Vann, [Vol. “ Those of cotton and workers in engaged flax, carding tobacco and flour, and chaff cutters suffer the same hemp, ato less than such manner, as are degree compelled decidedly inhale more & Goa- irritating particles.” (Fowler lee’s Diseases of the Lungs, 272.) “ as in the case of knife- Dusty occupations, millers, bakers, stone-masons, like, grinders, special fraught to vulnerable Allbutt’s of Medi- dangers persons.” (5 System cine, 229.)

“The inhalation air in associated impure occupations with a renders the less very dusty atmosphere capable lungs infection.” Practice of Medicine (Osier’s resisting 269.) make to disease. The Dusty occupations prone people statistics Berlin as to coal street-cleaners, workers cabmen, and miners show this.” Journal (35 Am. Med. Assn. 1028.) “ The as to what had on business best be carried ** * tuberculosis is treated of Ambler. patients he butchers, thinks, at least possess immunity, generally that has been his but bakers are experience, particularly id. susceptible.” (37 1068.) “ Other dusts of less wdiich are little vegetable potency, less in results than mineral are flour and dusts, injurious which rather than starch,, seem obstruction operate by irritation. Bakers, confectioners and cooks pastry represent of tradesmen conditions of common body hygienic exhibiting character, of to heat from principal exposure in ovens, dust, steam, variations of too temperature, many instances movements necessi- bakehouses, unhealthy fatiguing tated where hand, done emanations kneading disagreeable from materials hours of more used, or less work, prolonged and loss these evils work, of rest. To of their trade the night bakers often add and irregular working intemperance living. me own senses also make conscious of a My disagreeable, much like that heated smell bones, sickly superadded are, steam other fumes. There incidents brief, many which reduce vital occupation baking energy, pre- Lochneb. Vann, Opinion per Rep.] Y.N. Diseases and shorten life.” affections (Arlige to lung

dispose of Occupations, 255.) bakers, etc., alters, ropem carpetmakers, occupations all essentially processes, they being dust-producing

“ induce workers excessive from pulmonary among suffering these workers affections. Although mortality that of and other diseases is below lung considerably phthisis nevertheless it is in case workers, metal inordinately every high, exceeding mortality agriculturists by proportions from 77 to 120 (Latham’s per varying Degister- cent.”. General’s Deport, 148.) to the data in his Dr. C. Moeller presented According “ on Baker

work of bakers Hygiene Industry (p. 295): between the of 45 and cent 65, ages per dying twenty-five from chronic bronchitis or died related diseases.” He points “ the of the flour out dust and persistency starchy particles ” the bronchial even tubes, by quoting lungs to the effect half medical even two and a authority after weeks leaving emplojmient, starchy particles dust evidences of flour had been found other expectora- examined.” of bakers tion to the tables of According comparative mortality

(cid:127) 1900, Federal census number of deaths bakers and among was three and two-tenths confectioners cent than greater industrial These tables average general occupations. favorable to are somewhat bakers between the of 15 and ages are unfavorable to them between the 44, ages as stated above. 1 Parke’s also, over, being (See, average ;133 62 of Practical Medical Decord, 334; Manual Hygiene, Examiner Nov. tit. Occu- Practitioner, 1902, Medical Id. tit. the Death ; July, Occupation pations affecting Date.) death rate in

The heaviest falls to cabdrivers, England tailors and bakers. (Mulhail’s Dictionary printers, painters, Statistics to trades in Statistics, 195.) relating thirty-nine show that more have and Wales bakers consumption England in than the and the vocations, those other average engaged Lochneb. O’Bbieh, Dissenting opinion, per J. [Vol. table of male in rate Paris shows death mortality among higher bakers than in all but five out of of the common twenty of life. callings (Id. 688.)

While filled with those who air breathe mortality among minute of flour is less than work those who particles among stone, in metal or still seems to be demonstrated clay, it is than in avocations dust-laden greater generally. a air in baker’s or confectioner’s establishment is more benign less liable to irritate metal, than of stone or particles while bakers are

hence, masons, classified potters,.stone file still to etc., less liable grinders, pul- regarded disease than other evi- members of monary class. dence while not uniform leads to the the occu- conclusion that of a baker or confectioner is and tends pation unhealthy in result diseases of the are valid As statutes respiratory organs. which that women or children shall provide not employed establishment more than a certain any manufacturing of hours in a number think is valid so I an act single day, that in an which the provides employment which is deems, fact, some extent detrimental no health, sex, shall be person, regardless age permitted than labor more a certain number of hours required or week. Such under such day circumstances, legislation, health law and is valid exercise of the police power. I vote for affirmance. The defendant was (dissenting). convicted

O’Brieit, a misdemeanor under one of the subdivisions of section 384 of the Penal in that he Code, violated section article eight, 1Í0, Laws of known chapter as the Labor Law. The indictment that on the charges twenty-first day he was December, 1899, arrested complaint his one of for the law in employees violating permitting work more employee than bakery hours sixty that be was week; convicted fined Court and City or in default twenty dollars, thereof stand to the committed county jail and that he twenty days, fine; paid after conviction defendant wrongfully, unlawfully -y. 175 Lochnek. J, O’Brien, Dissenting opinion, Eep.] N. Y. the law, to violate with intent on his

and knowingly, part ” work named to another cmd employee required permitted com- the week than hours in one week more sixty during the. 19th and 26th, ending April mencing April confectionery and cake and biscuit, defendant’s bread bakery as a second a misdemeanor establishment, thereby committing made in such case to the the statute form of offense, contrary and and of the People against peace provided and their State of New York dignity. to the indictment two

The defendant demurred on grounds: and more than crime was That charged; (2) (1) a The court over- stated not crime. local facts do constitute no been ruled demurrer, having interposed by plea were taken defendant the indictment allegations 330 the Code of Criminal Procedure, under section true, the defendant entered and conviction was judgment sentenced to a fine or stand committed dollars, pay fifty not until the fine was exceed days. fifty county jail paid, a at Division was affirmed Appellate by judgment has this and from the defendant court, divided judgment for review this court, appealed up appeal brings all raised the demurrer to the indictment. the questions by (cid:127) is to found statute rests upon judgment and reads as follows: the Penal Code Any (% 1) * * * or not wdio violates does comply person of article Law, Labor relating provisions eight establishments, bakeries employment confectionery food of flour or meal labor and manufacture products * * "x" of a misdemeanor con- therein guilty of not for a offense fine shall first by viction be punished dollars; for nor than one hundred less than more twenty nor, than than more a fine of not less offense by fifty second than not more or for dollars, hundred imprisonment two by both such fine and or imprisonment; days, thirty than two hundred fifty a fine not less third offense than for not more sixty days, dollars, by imprisonment fine and both imprisonment.” v. Lochnee. Dissenting opinion, per O’Biiien, J. [Vol. It bewill seen that this section of the Penal Code not does the acts or which are specify omissions made does crimes, nor it in terms any define the crime at refers appropriate all, for that to another law. When we turn to article purpose of the Labor Law, referred to we find that con- eight above, it tains -six certain separate sections, commanding things certain section prohibiting which things. particular indictment to have been violated the defendant is charges the first section of or article, section and that reads as follows: No shall be or to employee required permitted work in a bread cake biscuit, or or bakery confectionery establishment more than in hours one or week, more sixty any than ten hours in one unless for the mak- any day, purpose a shorter on the last work nor ing day week; day in more hours one than week will make an average ten hours for the number of such week day days during in shall While this work.” section employee the Labor Law certain does forbid no what- penalty things, ever a is attached in violation, to order to and, therefore, get a definition of the crime in the indictment particular charged we must examine two statutes different general subjects; that is must we read Penal Code say, penalty or we read the Law in must Labor order punishment, to ascertain the act or omission which constitutes particular the crime.

One of the of the demurrer is that the indictment grounds will two crimes. It be seen that two or charges things two or have statute; acts omissions been forbidden by forbids the master from either or permitting requiring in servant to work more than the time the statute. specified is it makes it valid, for the that the statute Assuming present work crime for the master to the servant to over permit him and it makes it a crime for also time; require statutory or to work. The two acts omissions or servant so compel the statute are different nature and inhibited by essentially the servant to it is work; character. is one permit thing him or it. another Permitting thing compel require quite Loohneb. Rep.] opinion, per Dissenting' S'. Y. O’Bribn, or ten be intentional work more than the hours might he him to work would involuntary. Compelling requiring deliberate on of the master violation act the part statute. In well the one case very punishment might have to be the other case it would nominal; necessarily acts omis- would seem two substantial, and, hence, each sions so different in nature and character and essentially in itself not be united crime could constituting properly more than and in this same view the charge, objection crime stated indictment good. But the also made that the acts or omissions was objection a and this crime, stated the indictment do not constitute the raises the as to the statute validity objection question and is more than the form or substance of much importance of the indictment. It will be examination seen from the that there is act the ‘serv- law no prohibition against He ant himself in than the time. statutory longer working he as likes he day work hours during may many no offense whatever. So violates no law commits it a a makes broad is whether statute which crime what the his to do servant for the master to servant permit a law. restrictions has a to do can valid Ho perfect right the hours of are the servant with respect imposed upon a he has As remarked, labor or otherwise. perfect already a week as he want hours in or to work as day may right many a at the see to it, the master must to, peril committing but out of the that his servants driven building crime, ten and that, hours, moment clock requisite registers affect- and circumstances conditions too, without regard It is a crime the master. the interests of the business or ing work over his servant-to or for the master permit require or even desirous how no matter time, willing statutory for overwork. earn extra be to servant compensation may his for with servant to contract longer is forbidden The master or be the wants what matter and extra no hours pay, or will of or business, judgment necessities of It is obviously such contract. servant respect v-. Lochnee. opinion, Dissenting per O’Bbien, [Yol. of those paternal laws, enacted doubtless with the best inten- but which in its tions, must operation inevitably put enmity and strife between master and servant. are not left They free to make their own in their own their bargains way, mutual interests are statute. governed by character of the sweeping legislation question may be illustrated a reference to the last section of the article of the Labor Law referred to that is to indictment; to section 115. It is say, there enacted as follows : If, opinion alterations are factory inspector, required and used upon premises in order to occupied bakeries, com- with the ply of this a written provisions article, notice shall be -served him owner, or lessee of agent either premises, mail, such altera- personally requiring tions to be made within after such sixty days and such service, alterations shall be made There is no accordingly.” penalty failure to observe this law the law but when itself, we look into the amendments of the Penal Code we find owner aof valuable used as be at the building bakery may mercy if it since, that the. factory inspector, happens rooms are less than feet in must tear it he down eight height, and rebuild if the it, so or be factory inspector it, requires ato criminal fine and subject prosecution, down imprisonment the third and so offense, as the orders of the possibly long are not carried out. It is inspector inconceivable that quite the when the understood, amendments legislature enacting the Code reference to another that its action by law, would have such a effect or confer such sweeping arbitrary powers a ministerial officer that affected and upon liberty of the individual. property

It is contended in behalf of the defendant that the law under which he was convicted violates section of article fourteen of the Constitution of United 'States, pro- hibits state from or any law which making any enforcing shall within its deny any person jurisdiction equal pro- tection of the and those law, Constitution of provisions this state which enact no member of this state shall be 179 People Loohneb. O’Esieit, $T. Dissenting opinion, Bep.] Y. or or of rights privileges,

disfranchised deprived any land the law citizen unless thereof, by secured to any of life, his liberty nor and deprived judgment peers, art. 1,§§1, 6.)' of law. or without due process (Const, property not mean an act of land” do The words “law of the wrong. for the very working passed purpose no shall be any deprived person meaning him the unless Constitution, secured to rights privileges him a trial had the matter shall be against adjudged mere It cannot be done to law. legislation. according 4 White v. 5 Barb. 474 Hill, 140; White, v. Porter, ; (Taylor v. 13 20 Barb. 198 ; Wynehamer People, v. Toynbee, People 237; ex rel. Warren v. 144 N. Y. Beck, 378; N. Y. People Y. v. Coler, ex rel. N. 1; Rodgers N. Y. The doc Co., Road Const. County Orange 84.) trine of these cases condemns the legislation of the citizen. invasion of liberties rights, property last cited out of the same law that is The three cases grew at similar case cannot be bar, laws, violated from it in distinguished principle. Law excludes from its

The Labor restric- regulations all farm work or tions domestic service engaged persons hence, and, very large (Art. 3) proportion people § the state who labor for not affected at all. living class of earners who toil for a livelihood this Why large wage from the benefits of those who statute, are excluded it is them burdens restrictions, exempt employ The farmers and class difficult to large conceive. who domes- both city country employ people without them to work number hours tics any may require commit no crime their law. They by requiring violating till after dark or even into work from servants to daylight in of the law which conviction section The upon night. a small is aimed at class of this case is based persons, very “ or bread cake biscuit, those who conduct bakery namely, Work of same establishment.” general or confectionery in and domestic servants is exacted from cooks practi- character Loohner. O’Brien, opinion, Dissenting [VoI. all the houses in cally the land and extent private to great hotels, restaurants and other be absurd It public places. w.ould or even the say all, bread, part biscuit, greater cake and consumed in this state comes from what confectionery are called bakeries. The law does not even to bakers apply in the small towns and who own It do their work. villages to bakers who find it applies only labor, necessary employ alone are in case criminal subjected prosecution the servant to ten work more than hours in thpermit even the servant day, is and is extra though willing given baker under compensation. forbidden, penalty fine and to contract or with his servant imprisonment, agree the hours of upon labor would way mutually his business is beneficial, statute. practically regulated If for reason he suffers or his servant ah any to work permits additional half-hour time his beyond statutory liberty his at the who property put mercy servant, may him to be arrested and not does procure imprisoned. from the record this or in other appear case, any way, there is or business of a vocation baker anything would authorize the such criminal impose penal- ties Mm for his than servant to work more permitting ten hours in the or to restrict his freedom contract, day, which is a all other labor. right enjoyed by employers without Constitution be invaded guaranties interference with the or any physical person property citizen. He is of his within deprived property meaning Constitution when restric- arbitrary unnecessary tions are his conduct of lawful business, imposed upon any and when he to make contracts deprived right transaction thereof. means broad sense, Liberty, not freedom from actual restraint of right, only but the of such his in all use of faculties lawful person, right to live work where he to earn Ms livelihood will, ways, trade lawful lawful or avoca- calling, pursue any tion. All trammel those laws, therefore, impair or restrict his his choice freedom of rights action, 181 People v. Lochitee. O’Bbieh, opinion, Bep.] Dissenting N. Y. are of his lawful business, infringe

methods transaction are void. his fundamental of ments liberty, upon right (Matter should 98 Y. Jacobs, N. cannot They 98.) of are the the because they of courts not scrutiny merely escape assume, the or otherwise, police made to by argument guise regulations. the defendant of

The statute equal question deprives that certain acts or omis law, since enacts protection his the conduct his sions on part business concerning crim his to his own servants crimes and relations are punished as to all not within the rest of which, community inally, small terms of this are innocent. law, entirely very bakeries, fraction of the who to conduct community happen under establishments, prohibited, pain confectionery their fine the conduct of imprisonment, regulating their own mutual with business contracts or by agreements all find it whereas rest of the who employees, community so. Class labor business do necessary employ private of this discriminates favor of character which legislation the Constitu another forbidden by against person tion if United not Constitution States, by has and so it been held state; Court Supreme by this court. C. & F. R. Co. v. United States S. (Gulf, 183 165 U. S. v. Kansas Y. 150; Co., S. Ellis, Cotting City 184 U. v. U. S. P. S. ; Co., 540; S. Connolly U. Road 175 N. Y. Co., 87,. is, Constr. County 90.) Orange that the I obvious is, think, upon quite legislation referred in conflict the constitutional face, guaranties it can be within xmless to, scope brought the statute is That is power. only ground He defended learned district contends attorney. law a health for the passed pub purpose protecting at least the those lic health of health, persons employed is that the forbidden bakeries. defendant was argument than ten his more the statute workmen work permit have that his hours in a the end customers might day, if whereas wholesome biscuit bread, and confectionery, Lochnek. opinion, Dissenting per O’Brien, J. [VoI. were to work ten and a half permitted hours day would product be unwholesome or bakery dangerous to health. What relation or possible connection number of hours that the workmen are to work permitted or can has, to the healthful bakery have, bread quality there is made to conceive. The quite impossible baker small or even in the towns, who does his own towns, large work does not labor, work or with- employ may day night out fear of since no it molestation, thought necessary his public unwholesome It has protect against product. been observed that the law does already not impose any penal- ties or restrictions the workman himself for upon too working and if the was to his health much, purpose his protect against own or his own misdirected avarice, remark- energy, quite that it did not at least him able forbid more working than ten hours in a day. contention that

The the defendant was convicted for viola- at a health law best I but a mere is, think, ting disguise save is not sufficient to the statute from condemnation. There face on the of the law nor in its manifest nothing operation that it has to show relation to the health. It is any no the Health Law of a statute known part part general as the Labor Law. execution of it was not intrusted the health but to the authorities, factory inspector, what its real shows was. The fac- scope purpose is not officer with the enforcement inspector charged tory . health laws. The classified as a labor law, it is that and else. Laws which encroach nothing upon or citizen, property personal rights guaranteed are defended Constitution, generally ground but the courts police regulations; have'pre- means of which their true character and scribed test by pur- known. The rule is that the court must be be able pose that the statute in is a health law, say judicially relation and has some or promotion protec- appropriate health. It will not be deceived or misled mere tion of or numerous in The cases are which the pretenses. .names v. Loohheb. O’Bbien, opinion, Dissenting Bep.] N. Y. statutes as invasions rights

courts have condemned enacted the Constitution, citizen though secured to the other health laws or under to be guise upheld sought result, all arrive at same They regulations. a stat under the not that is that the guise legislature may arbitra real ute to some imaginary, wrong, protect against invade freedom or personal strike down rily private rights must exer police power confiscate private property. methods. within its sphere by appropriate cised appropriate 99 N. Y. Marx, 377; Peo Jacobs, supra; (Matter of 388 v. 109 N. Gillson, 103 Y. ; v. N. Arensberg, People ple ; Y. ex rel. 188; v. 153 N. Lisk, Y. 389 Colon Podgers v. Fish 164 N. Y. v. 166 N. Y. Coler, 1; Co., People Buffalo Y. It will not do Hawkins, N. 101, 104; People 1.) that the statute to enacting say or had that it was a health some relation law, have thought may or its views or health. action reasons to legislature, does not law, conclude the courts, passage themselves whether in must determine for any given which is claimed be an exercise of the case legislation it is is what claimed be. labor really Every could as however well be arbitrary, law, stringent just that it is a health but in all law; upon ground upheld that have had the courts for discussions been years many of this validity there charactei’, concerning legislation few he found but cases where it was even are to claimed very was enacted for the statute that or purpose preserving or that had relation whatever to that health, promoting is When it is in this manifest, that the case, subject. whatever to the has no relation health, law subject its real was to that hours of object purpose regulate in a master servant business between which labor pri morals, not vate and freedom to health, dangerous their other, each mutual defining contract obligations, without fundamental cannot be law. violating prohibited was indictment with the vio- The defendant charged of a of article section single eight lation independent Loohnbk. O’Bkieu,

Dissenting opinion, per [Vol. Labor relates Law, first section, namely, solely within lionrs which the master the servant to permit may work. that section is not affected validity helped (cid:127) out the character of some of the other sections of since aof statute valid and article, be part may perfectly in conflict with the Constitution. It is another part quite pos- that sible some of the other five sections can be ¡Darts regarded such as ventilation, prescribing sanitary regulations, plumb- fire and the like, but such cannot save escapes ing, regulations the first section which deals with the time within exclusively which the servant is to work and makes contract virtually to be observed the master the servant alone, leaving justas free as if the law had never been A or sec- section, passed. of a statute tions, that may prescribes good requires the landlord owns and sanitary who regulations binding lets tenement houses cities, but this would not save another section of the statute the maximum rent prescribes he demand and receive from tenants. even his ' that a law possible beheld quite might good enjoins upon farmers or domestic persons employing help duty pre- their health infectious diseases serving reasonable against such as ventilation of the rooms where proper safeguards, and the this like, but would not save a they sleep separate section of the law the that the prescribing compensation master is the to servant. that So the section required pay of the Labor Law with which we are now concerned can borrow no from its association other sections of strength the statute that be section of the good. single Labor Law that we are now with must stand or fall dealing upon its own intrinsic character and can no receive support the in which it is found. If that section had also company that of a baker would be provided every employee guilty a misdemeanor if he or refused to serve neglected faithfully his master for ten full hours each no one I day apprehend would then claim that it a was health law. And yet every the cited defense of section every argument authority in its form would be then as' present just good Lochbeb. y. O’Brien, opinion, per Dissenting Bep.] Y. health then he as much of a The section would

now. just it is now. law as often that if the section

It too cannot repeated single is the are now and which the law with which we concerned the criminal in <4his stood a]one, basis of case, sole charge it that is a health law and within police power argument have even a or would not color reason authority support us is what the district it. But learned attorney urges upon is found the article associated with that since section we assume must other sections prescribing sanitary regulations, for some reason sufficient that legislators, unexpressed that a not to be reached conclusion baker them, ought per- mitted or on of more than ten work required average in a this is without force and Of course hours day. reasoning meet is not what does not difficulty. is that moved so lawmakers, reason long unexpressed for court to reason or is discover impossible any any within the the enactment reason bring scope police is to the deter- courts to open inquire power. always within the mine whether statute fact fairly police in all That is found the cases on imbedded principle power. If it were otherwise and the real view of the that subject. made dominant then court would be idea, legislature all to declare law void provided deprived called it an some exercise or power, it was be such some one contended supposed that the interest its enactment. There required theory then to the statute be no limit would police power every and in violation the constitutional safe- however arbitrary could be life, protection liberty property guards it health law or lawmakers called on plea upheld for that it as was such, necessary thought pur- intended the see to it that to such It is incumbent courts pose. if to be what or claimed be, are to they laws really profess are the that reasonable within they scope regulations police of power. vocation is one that has existed

The bakers’ practically -y. Lochker. Dissenting opinion, O’Beeen, per [Vol. in all all countries. Wherever cereals are converted ages the into standard food of the human bread, race, possi- except as those that are to races considered or bly savage semi-savage, of bread is of the most common making employments. is to familiar domestics or process every public pri- as vate house in land well as in the called places bakeries, where bread made for sale has never been public. it that was a trade or vocation that was or supposed might morals or health, or that there was order, dangerous good it to about of anything justify legislation restricting right the master and servant to make their own contracts, express with or hours of work or of the terms respect implied, There the record before us from employment. nothing be inferred which it can that there was for the any ground a the statute as of for the police regulation passage protection morals or health, and, cannot order, hence, be upheld good an exercise of the It is a as discrimina- power. plain a limited class who tion to be people against happen obliged labor the manufacture of bread, biscuit or con- employ" in those called This bakeries. fectionery places relatively class are restricted the statute to the small there regulations with to the hours of labor their respect prescribed and are them prohibited employees agreeing the time to work even extra though should be pay law overwork, to all other right given gives If labor. can do all this employing legislature persons to enact what then servant shall receive right wages must as an follow inevitable day necessarily per.hour A statute servant at such conclusion. fixing wages sum enable him to live more as to could be comfortably a health law the same defended argument authority adduced section the vio- support law, present is the crime lation which only charged.

It is doubtless within to enact a ton of coal a bushel of wheat shall contain a certain number of cannot from enter- prohibit pounds; parties effect or a into ton coal to the contracts bushel ing v. Loohker. Bartlett, opinion, Dissenting Rep.] N. Y. than the

wheat shall contain more less prescribed quantity is matter, When there no contract statute. regulating consti- to what is a between and there dispute parties the statute would wheat, a a bushel tutes ton of coal or inSo available settle the doubtless be controversy. the number of the master and servant with case respect a that shall work. may hours constitute day’s work, a define is or shall constitute day’s doubt what no for from cannot prohibit making agreements parties contract, then custom or or implied, themselves, express would control the mutual obligations parties. do not constitute crime,

The facts stated the indictment must sustained, demurrer be and, therefore, judgment of conviction reversed and defendant discharged. I with for J. (dissenting). agree Judge O’Brieit

Bartlett, In one of the authorities cited reversal. encyclopaedia Bakers and confectioners who, said: respondent during “ air the finest breathe filled with dust hours, working constantly jlour and have a etc. tendency consumption,” sugar, authorities cited baker as condemning calling refer to where doubtless localities unhealthy, they grind and other materials used. loaf-sugar grain, observed in without num- the medical authorities passing ” lose some if where were, ber of their force the writers might should court be, cross-examination. subjected that the like the cooks in baker, It is common experience has for him restaurants and families, hotels, provided private and the flour, business other duly in his ingredients pre- sugar The claim that for immediate use. compounding pared so in the business of constituents, baker, of these prepared, will bakers anis surprise good unhealthy occupation, like steel, of this state. The housewives grinding and of other similar of Sheffield, England, needle-grinding dust, clouds materials and substances, impalpable causing baker the avocation not to be confounded family labor in pro- engaged necessary highly appreciated -y. Lochheb. opinion, per Babtlett, Dissenting [VoI. cakes and other ducing bread, commodities pies, more calcu- lated to cause than consumer in dyspepsia consumption the manufacturer. of miller who a country fifty years ago passed long life amid the hum of happy and the machinery grinding of and nether

process little of a upper stqnes, dreamed when the in the full coming day of legislature, panoply would rescue his paternalism, successor from the appalling he life led until "old summoned him to dangers retire. age It has been said that the limits of the frequently police cannot be that it is not defined; accurately desirable should be thus trammeled. legislature When this court that the held in acted legiti mate, exercise of the in com undiscriminating police power all barbers to observe the first of pelling strictly week, day called in Sunday, of commonly except village Saratoga ¡New and the city York, Springs doubt profession legal less' concluded that the of the undefined had elasticity arrived at its TJ-ltvma Thule. v. 149 N. (People Havnor, Y. 195.) That this conclusion was erroneous shown the fact that the case is now the baker when men in doing duty against kindred are as to work occupations permitted hours as many dictates. necessity ' Another in this case is whether section con- 110, in tained article of the Labor Law Laws 415, (Chapter is within This section is contained in police 1897), power. article consists of sections 8, 110, 112, 113, 114 111, and 115. I am of the that all the sections of said opinion section article, within 110, excepting police ¡tower, do to conditions the busi- sanitary concerning relating of a 110, ness baker. section exclusively Placing relating hours of does to labor bakeries estab- confectionery does not article it within the lishments, bring power. this said In recent case court : In the interest public morals state health, order, may public be the restrain and forbid what would otherwise right County York. State of Hew Ulster Rep.] Y. ÍT. Statement ease. the extent of citizen. enact laws to

private may regulate immature labor which women and children or years persons their shall be allowed to altogether perform, prohibit v. occupations. (Commonwealth employment dangerous 120 Mass. Tiedeman’s Police 383; Hamilton Co., Mfg. ” Co., Road Cons. Power, Orange 85.) (People County § Y. 84, 87, 175 N. 88.) state also hours of labor regulate deep at where vocation

unhealthy mines, pursued the risk of health and life. I believe that is because aof does not fall these baker within occupation general princi- and the authorities I for reversal. vote cited, ples, array Gray Ch. read for Parker, J., Vann, JJ., affirmance, read Haight, J., concurs; Bartlett, O’Brien and JJ., for concurs. reversal, Martin, J., affirmed.

Judgment County v. The State of New Ulster, Respondent,

York, Appellant. Moneys Liability — Derived 1. Counties of the State to Refund Their from Taxes Towns Construc- on Railroads Bonded 907; 1869, tion, Tax—L. Paid as Part of Their Ch. Counties State Enabling 1871, 883; 1899, which, county as a Act, L. Ch. 336. A Ch. part tax, treasury moneys paid of its state into the derived has state upon levied in towns in their construction taxes railroads which aided were, bonds, moneys chapter through by section 4 of 907 the issue of chapter 1871, of the Laws directed of the Laws of as amended sinking to be fund used be devoted to the establishment bonds, may recover the amount redemption of such and cancellation proof presentation due of its claim from the thereof state 1899, authorizing the chapter State Court under the Laws claims; liability of the state to such Claims to hear determine being precisely identical with that of moneys illegally received refund the them to the towns. county to refund Repeal Laws Tax Pro Tanto. or Modification General county paid was no more than by that the whole amount The fact the state to retain Tax Laws not entitle required does General (cid:127) special act of 1869 as amended moneys, for the reason Tax specific purpose, General to a required them to be devoted repealed modified extent. have been must be deemed to Laws

Case Details

Case Name: People v. . Lochner

Court Name: New York Court of Appeals

Date Published: Jan 12, 1904

Citation: 69 N.E. 373

Court Abbreviation: NY