 |
 |
 |
MR. JUSTICE PECKHAM, delivering the opinion of the court.
MR. JUSTICE HOLMES
dissenting.
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE
and MR. JUSTICE DAY concurred, dissenting
While this court has not attempted to mark
the precise boundaries of what is called the police power of the
State, the existence of the power has been uniformly recognized,
both by the Federal and state courts.
All the cases agree that this power extends
at least to the protection of the lives, the health and the safety
of the public against the injurious exercise by any citizen of
his own rights.
In Patterson v. Kentucky, 97 U.S. 501, after
referring to the general principle that rights given by the Constitution
cannot be impaired by state legislation of any kind, this court
said: "It [this court] has, nevertheless, with marked distinctness
and uniformity, recognized the necessity, growing out of the fundamental
conditions of civil society, of upholding state police regulations
which were enacted in good faith, and had appropriate and direct
connection with that protection to life, health, and property
which each State owes to her 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 in Allgeyer v. Louisiana, 165 U.S. 578, 589.
But in the same case it was conceded that the right to contract
in relation to persons and property or to do business, within
a State, may be "regulated and sometimes prohibited, when
the contracts or business conflict with the policy of the State
as contained in its statutes" (p. 591).
So, as said in Holden v. Hardy, 169 U.S.
366, 391: "This right of contract, however, is itself subject
to certain limitations which the State may lawfully impose in
the exercise of its police powers. While this power is inherent
in all governments, it has doubtless been greatly expanded in
its application during the past century, owing to an enormous
increase in the number of occupations which are dangerous, or
so far detrimental to the health of the employes as to demand
special precautions for their well-being and protection, or the
safety of adjacent property. While this court has held, notably
in the cases of Davidson v. New Orleans, 96 U.S. 97, and Yick
Wo v. Hopkins, 118 U.S; 356, that the police power cannot be put
forward as an excuse for oppressive and unjust legislation, it
may be lawfully resorted to for the purpose of preserving the
public health, safety or morals, or the abatement of public nuisances,
and a large discretion 'is necessarily vested in the legislature
to determine not only what the interests of the public require,
but what measures are necessary for the protection of such interests.'
Lawton v. Steele, 152 U.S. 133, 136." Referring to the
limitations placed by the State upon the hours of workmen, the
court in the same case said (p. 395): "These employments,
when too long pursued, the legislature has judged to be detrimental
to the health of the employes, and, so long as there are reasonable
grounds for believing that this is so, its decision upon this
subject cannot be reviewed by the Federal courts."
Subsequently in Gundling v. Chicago, 177
U.S. 183, 188, this court said: "Regulations respecting the
pursuit of a lawful trade or business are of very frequent occurrence
in the various cities of the country, and what such regulations
shall be and to what particular trade, business or occupation
they shall apply, are questions for the State to determine, and
their determination comes within the proper exercise of the police
power by the State, and unless the regulations are so utterly
unreasonable and extravagant in their nature and purpose that
the property and personal rights of the citizen are unnecessarily,
and in a manner wholly arbitrary, interfered with or destroyed
without due process of law, they do not extend beyond the power
of the State to pass, and they form no subject for Federal interference.
"As stated in Crowley v. Christensen,
137 U.S. 86, 'the possession and enjoyment of all rights are subject
to such reasonable conditions as may be deemed by the governing
authority of the country essential to the safety, health, peace,
good order and morals of the Community.'"
In St. Louis, Iron Mountain &c. Ry.
v. Paul, 173 U.S. 404, 409, and in Knoxville Iron Co. v. Harbison,
183 U.S. 13, 21, 22, it was distinctly adjudged that the right
of contract was not "absolute in respect to every matter,
but may be subjected to the restraints demanded by the safety
and welfare of the State." Those cases illustrate the extent
to which the State may restrict or interfere with the exercise
of the right of contracting.
The authorities on the same line are so
numerous that further citations are unnecessary.
I take it to be firmly established that
what is called the liberty of contract may, within certain limits,
be subjected to regulations designed and calculated to promote
the general welfare or to guard the public health, the public
morals or the public safety. "The liberty secured by the
Constitution of the United States to every person within its jurisdiction
does not import," this court has recently said, "an
absolute right in each person to be, at all times and in all circumstances,
wholly freed from restraint. There are manifold restraints to
which every person is necessarily subject for the common good."
Jacobson v. Massachusetts, 197 U.S. 11.
Granting then that there is a liberty
of contract which cannot be violated even under the sanction of
direct legislative enactment, but assuming, as according to settled
law we may assume, that such liberty of contract is subject to
such regulations as the State may reasonably prescribe for the
common good and the well-being of society, what are the conditions
under which the judiciary may declare such regulations to be in
excess of legislative authority and void? Upon this point there
is no room for dispute; for, the rule is universal that a legislative
enactment, Federal or state, is never to be disregarded or held
invalid unless it be, beyond question, plainly and palpably in
excess of legislative power. In Jacobson v. Massachusetts, supra,
we said that the power of the courts to review legislative action
in respect of a matter affecting the general welfare exists only
"when that which the legislature has done comes within the
rule that if a statute purporting to have been enacted to protect
the public health, the public morals or the public safety, has
no real or substantial relation to those objects, or is, beyond
all question, a plain, palpable invasion of rights secured by
the fundamental law" -- citing Mugler v. Kansas, 123 U.S.
623, 661; Minnesota v. Barber, 136 U.S. 313, 320: Atkin v. Kansas,
191 U.S. 207, 223. If there be doubt as to the validity of the
statute, that doubt must therefore be resolved in favor of its
validity, and the courts must keep their hands off, leaving the
legislature to meet the responsibility for unwise legislation.
If the end which the legislature seeks to accomplish be one to
which 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, is upon those who assert it to be unconstitutional.
McCulloch v. Maryland, 4 Wheat. 316, 421.
Let these principles be applied to the present
case. By the statute in question it is provided that, "No
employe shall be required or permitted to work in a biscuit, bread
or cake bakery or confectionery establishment more than sixty
hours in any one week, or more than ten hours in any one day,
unless for the purpose of making a shorter work day on the last
day of the week; nor more hours in any one week than will make
an average of ten hours per day for the number of days during
such week in which such employe shall work."
It is plain that this statute was enacted
in order to protect the physical well-being of those who work
in bakery and confectionery establishments. It may be that the
statute had its origin, in part, in the belief that employers
and employes in such establishments were not upon an equal footing,
and that the necessities of the latter often compelled them to
submit to such exactions as unduly taxed their strength. Be this
as it may, the statute must be taken as expressing the belief
of the people of New York that, as a general rule, and in the
case of the average man, labor in excess of sixty hours during
a week in such establishments may endanger the health of those
who thus labor. Whether or not this be wise legislation it is
not the province of the court to inquire. Under our systems of
government the courts are not concerned with the wisdom or policy
of legislation. So that in determining the question of power
to interfere with liberty of contract, the court may inquire whether
the means devised by the State are germane to an end which may
be lawfully accomplished and have a real or substantial relation
to the protection of health, as involved in the daily work of
the persons, male and female, engaged in bakery and confectionery
establishments. But when this inquiry is entered upon I find
it impossible, in view of common experience, to say that there
is here no real or substantial relation between the means employed
by the State and the end sought to be accomplished by its legislation.
Mugler v. Kansas, supra. Nor can I say that the statute has no
appropriate or direct connection with that protection to health
which each State owes to her citizens, Patterson v. Kentucky,
supra; or that it is not promotive of the health of the employes
in question, Holden v. Hardy, Lawton v. Steele, supra; or
that the regulation prescribed by the State is utterly unreasonable
and extravagant or wholly arbitrary, Gundling v. Chicago, supra.
Still less can I say that the statute is, beyond question, a plain,
palpable invasion of rights secured by the fundamental law. Jacobson
v. Massachusetts, supra. Therefore I submit that this court will
transcend its functions if it assumes to annul the statute of
New York. It must be remembered that this statute does not apply
to all kinds of business. It applies only to work in bakery and
confectionery establishments, in which, as all know, the air constantly
breathed by workmen is not as pure and healthful as that to be
found in some other establishments or out of doors.
Professor Hirt in his treatise on the "Diseases
of the Workers" has said: "The labor of the bakers is
among the hardest and most laborious imaginable, because it has
to be performed under conditions injurious to the health of those
engaged in it. It is hard, very hard work, not only because it
requires a great deal of physical exertion in an overheated workshop
and during unreasonably long hours, but more so because of the
erratic demands of the public, compelling the baker to perform
the greater part of his work at night thus depriving him of an
opportunity to enjoy the necessary rest and sleep, a fact which
is highly injurious to his health." Another writer says:
"The constant inhaling of flour dust causes inflammation
of the lungs and of the bronchial tubes. The eyes also suffer
through this dust, which is responsible for the many cases of
running eyes among the bakers. The long hours of toil to which
all bakers are subjected produce rheumatism, cramps and swollen
legs. The intense heat in the workshops induces the workers to
resort to cooling drinks, which together with their habit of exposing
the greater part of their bodies to the change in the atmosphere,
is another source of a number of diseases of various organs.
Nearly all bakers are pale-faced and of more delicate health than
the workers of other crafts, which is chiefly due to their hard
work and their irregular and unnatural mode of living, whereby
the power of resistance against disease is greatly diminished.
The average age of a baker is below that of other workmen; they
seldom live over their fiftieth year, most of them dying between
the ages of forty and fifty. During periods of epidemic diseases
the bakers are generally the first to succumb to the disease,
and the number swept away during such periods far exceeds the
number of other crafts in comparison to the men employed in the
respective industries. When, in 1720, the plague visited the
city of Marseilles, France, every baker in the city succumbed
to the epidemic, which caused considerable excitement in the neighboring
cities and resulted in measures for the sanitary protection
of the bakers."
In the Eighteenth Annual Report by the New
York Bureau of Statistics of Labor it is stated that among the
occupations involving exposure to conditions that interfere with
nutrition is that of a baker (p. 52). In that Report it is also
stated that "from a social point of view, production will
be increased by any change in industrial organization which diminishes
the number of idlers, paupers and criminals. Shorter hours of
work, by allowing higher standards of comfort and purer family
life, promise to enhance the industrial efficiency of the wage-working
class -- improved health, longer life, more content and greater
intelligence and inventiveness" (p. 82).
Statistics show that the average daily working
time among workingmen in different countries is, in Australia,
8 hours; in Great Britain, 9; in the United States, 9 3/4; in
Denmark, 9 3/4; in Norway, 10; Sweden, France and Switzerland,
10 1/2; Germany, 10 1/4; Belgium, Italy and Austria, 11; and in
Russia, 12 hours.
We judicially know that the question of
the number of hours during which a workman should continuously
labor has been, for a long period, and is yet, a subject of serious
consideration among civilized peoples, and by those having special
knowledge of the laws of health. Suppose the statute prohibited
labor in bakery and confectionery establishments in excess of
eighteen hours each day. No one, I take it, could dispute the
power of the State to enact such a statute. But the statute
before us does not embrace extreme or exceptional cases. It
may be said to occupy a middle ground in respect of the hours
of labor. What is the true ground for the State to take between
legitimate protection, by legislation, of the public health and
liberty of contract is not a question easily solved, nor one in
respect of which there is or can be absolute certainty. There
are very few, if any, questions in political economy about which
entire certainty may be predicated. One writer on relation of
the State to labor has well said: "The manner, occasion,
and degree in which the State may interfere with the industrial
freedom of its citizens is one of the most debatable and difficult
questions of social science." Jevons, 33.
We also judicially know that the number
of hours that should constitute a day's labor in particular occupations
involving the physical strength and safety of workmen has been
the subject of enactments by Congress and by nearly all of the
States. Many, if not most, of those enactments fix eight hours
as the proper basis of a day's labor.
I do not stop to consider whether any particular
view of this economic question presents the sounder theory. What
the precise facts are it may be difficult to say. It is enough
for the determination of this case, and it is enough for this
court to know, that the question is one about which there is room
for debate and for an honest difference of opinion. There are
many reasons of a weighty, substantial character, based upon the
experience of mankind, in support of the theory that, all things
considered, more than ten hours' steady work each day, from week
to week, in a bakery or confectionery establishment, may endanger
the health, and shorten the lives of the workmen, thereby diminishing
their physical and mental capacity to serve the State, and to
provide for those dependent upon them.
If such reasons exist that ought to be the
end of this case, for the State is not amenable to the judiciary,
in respect of its legislative enactments, unless such enactments
are plainly, palpably, beyond all question, inconsistent with
the Constitution of the United States. We are not to presume
that the State of New York has acted in bad faith. Nor can we
assume that its legislature acted without due deliberation, or
that it did not determine this question upon the fullest attainable
information, and for the common good. We cannot say that the
State has acted without reason nor ought we to proceed upon the
theory that its action is a mere sham. Our duty, I submit, is
to sustain the statute as not being in conflict with the Federal
Constitution, for the reason -- and such is an all-sufficient
reason -- it is not shown to be plainly and palpably inconsistent
with that instrument. Let the State alone in the management of
its purely domestic affairs, so long as it does not appear beyond
all question that it has violated the Federal Constitution. This
view necessarily results from the principle that the health and
safety of the people of a State are primarily for the State to
guard and protect.
I take leave to say that the New York statute,
in the particulars here involved, cannot be held to be in conflict
with the Fourteenth Amendment, without enlarging the scope of
the Amendment far beyond its original purpose and without bringing
under the supervision of this court matters which have been supposed
to belong exclusively to the legislative departments of the several
States when exerting their conceded power to guard the health
and safety of their citizens by such regulations as they in their
wisdom deem best. Health laws of every description constitute,
said Chief Justice Marshall, a part of that mass of legislation
which "embraces everything within the territory of a
State, not surrendered to the General Government; all which can
be most advantageously exercised by the States themselves."
Gibbons v. Ogden, 9 Wheat. 1, 203. A decision that the New York
statute is void under the Fourteenth Amendment will, in my opinion,
involve consequences of a far-reaching and mischievous character;
for such a decision would seriously cripple the inherent power
of the States to care for the lives, health and well-being of
their citizens. Those are matters which can be best controlled
by the States. The preservation of the just powers of the States
is quite as vital as the preservation of the powers of the General
Government.
When this court had before it the question
of the constitutionality of a statute of Kansas making it a criminal
offense for a contractor for public work to permit or require
his employes to perform labor upon such work in excess of eight
hours each day, it was contended that the statute was in derogation
of the liberty both of employes and employer. It was further
contended that the Kansas statute was mischievous in its tendencies.
This court, while disposing of the question only as it affected
public work, held that the Kansas statute was not void under the
Fourteenth Amendment. But it took occasion to say what may well
be here repeated: "The responsibility therefor rests upon
legislators, not upon the courts. No evils arising from such
legislation could be more 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.
|
|
|
© 1995 - 2009, Touro Law Center