LOCHNER v. NEW YORK
No. 292
SUPREME COURT OF THE UNITED STATES
198 U.S. 45; 25 S. Ct. 539; 1905 U.S. LEXIS 1153; 49 L. Ed. 937
Argued February 23, 24, 1905
April 17, 1905
PRIOR HISTORY: [***1]
[omitted]
JUDGES: Fuller, Harlan, Brewer,
Brown, White, Peckham, McKenna, Holmes, Day
OPINIONBY: PECKHAM
OPINION: [*52] [**540] 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 [**541] the section, in using the word
"required," as referring to any physical force being used
[***12] 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] time, but this statute forbids the
employer from permitting the [***13] 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 [***14] 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] 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 [**542] right to labor or the right of
contract in regard to their means of livelihood between persons who are sui
juris (both employer and [***15] 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 [***16] 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] 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 [***17]
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 [***18] 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] 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, [***19] 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 [**543]
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 [***20] 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]
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. [***21] 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 [***22] be appropriate and legitimate, before an act
can be held to be valid which interferes [*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 [***23] 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 [**544] 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] We think that there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one [***24] 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 [***25] 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] 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 [***26] 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 [***27] 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] 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 [***28] 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 [**545] 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 [***29] do has been done by it with regard to the
conduct of bakeries, as provided for in the other sections of the act, above
set forth. These several sections provide for the inspection of the premises
where the bakery is carried on, with regard to furnishing proper wash-rooms and
water-closets, apart from the bake-room, also with regard to providing proper
drainage, plumbing and painting; the sections, in addition, provide for the
height of the ceiling, the cementing or tiling of floors, where necessary in
the opinion of the factory inspector, and for other things of [*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 [***30] fair provision, as to run counter to that
liberty of person and of free contract provided for in the Federal Constution.
It was further urged on the argument that restricting the hours of labor in the
case of bakers was valid because it tended to cleanliness on the part of the
workers, as a man was more apt to be cleanly when not overworked, and if
cleanly then his "output" was also more likely to be so. Wthat has
already been said applies with equal force to this contention. We do not admit
the reasoning to be sufficient to justify the claimed right of such
interference. The State in that case would assume the position of a supervisor,
or pater familias, over every act of the individual, and its right of
governmental interference with his hours of labor, his hours of exercise, the
character thereof, and the extent to which it shall be carried would be
recognized and upheld. In our judgment it is not possible in fact to discover
the connection between the number of hours a baker may work in the bakery and
the healthful quality of the bread made by the workman. The connection, if any
exists, is too shadowy and thin to build any argument for the interference of
the legislature. [***31] 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] 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
[***32] 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
[**546] 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
[***33] 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] 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 [***34] 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] the County Court for further proceedings not
inconsistent with this opinion. [***35]
Reversed.
DISSENTBY: HARLAN; HOLMES
DISSENT: [**547contd] [EDITOR'S NOTE: The page
number of this document may appear to be out of sequence; however, this
pagination accurately reflects the pagination of the original published
document.]
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 [***36] direct connection with that protection to
life, health, and property which each State owes to her citizen." 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] 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 [***37] 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 [***38] are
necessary for the protection of such interests.' Lawton v. Steele,
152 U.S. 133, 136." [**548] 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] 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 [***39] 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
[***40] 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] 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,
[***41] 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 is 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, [***42] 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 [**549] is provided that, "No employe shall be required or
permitted to work in a biscuit, bread or cake [*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,
[***43] 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 [***44] it is not promotive of the health of the employes in
question, Holden v. Hardy, Lawton v. Steele,
[*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 [***45] 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] greatly diminished. The
average age of a baker [***46] 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 [**550]
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 [***47] 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] 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 [***48] 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,
[***49] 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] 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 [***50] 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 [**551] which "embraces everything
within the territory of a State, not surrendered to the General Government; all
which can [***51] 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]
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. [***52] But it took
occasion to say what may well be here repeated: "The responsibility
therefor rests upon legislators, not upon the courts. No evils arising from
such legislation could be more far-reaching than those that might come to our
system of government if the judiciary, abandoning the sphere assigned to it by
the fundamental law, should enter the domain of legislation, and upon grounds
merely of justice or reason or wisdom annul statutes that had received the
sanction of the people's representatives. We are reminded by counsel that it is
the solemn duty of the courts in cases before them to guard the constitutional
rights of the citizen against merely arbitrary power. That is unquestionably
true. But it is equally true -- indeed, the public interests imperatively
demand -- that legislative enactments should be recognized and enforced by the
courts as embodying the will of the people, unless they are plainly and
palpably, beyond all question, in violation of the fundamental law of the
Constitution." Atkin v. Kansas, 191 U.S. 207, 223.
The judgment in my opinion should be affirmed.
[**546contd] [EDITOR'S NOTE: The page number of this document may
appear to be [***53] out of sequence; however, this pagination
accurately reflects the pagination of the original published document.]
MR. JUSTICE HOLMES dissenting.
I regret sincerely that I am unable to agree with the judgment
[*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, [***54] 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 [**547] 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] [***55] 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 [***56]
instalment of a general regulation of the hours of work. Whether in the latter
aspect it would be open to the charge of inequality I think it unnecessary to
discuss.