Court of Appeals of New York


January 12, 1904


Court of Appeals of New York


January 12, 1904









 I concur in the result (upholding the constitutionality of the Bakers’ Act as a valid exercise of the state’s police power) reached by the Chief Judge for the following reasons:


 I do not think the regulation in question can be sustained unless we are able to say from common knowledge that working in a bakery and candy factory is an unhealthy employment. If such an occupation is unhealthy, the Legislature had the right to prohibit employers from requiring or permitting their employees to spend more than a specified number of hours per day or week in the work, because such a command would be in the interest of the public health, and would promote the general welfare. As in the Jacobs Case we took judicial notice of the nature and qualities of tobacco (page 113, 98 N. Y., 50 Am. Rep. 636), so in this case we may take judicial notice of the effect of very fine particles of flour and sugar when inhaled into the lungs from the heated atmosphere of manufactories of bread and candy.


 Necessarily, in considering the subject, we may resort to such sources of information as were open to the Legislature. Vital statistics show that those vocations which require persons to remain for long periods of time in a confined and heated atmosphere filled with some foreign substance, which is inhaled into the lungs, are injurious to health, and tend to shorten life.


 Bakers and confectioners, who, during working hours, constantly breathe air filled with the finest dust from *170 flour and sugar, have a tendency to consumption, the most terrible scourge known to modern civilization, and resulting in more deaths than any other disease. 1 People's Cyc. 479; Mulhall's Dict. Statistics, 193 and 683. Thus, in the article on phthisis [a progressively wasting condition] in volume 18 of the last edition of the Encyclopaedia Britannica it is said: 'Occupations which necessitate the inhalation of irritating particles, as in the case of stonemasons, needle grinders, workers in minerals, in cotton, flour, straw, etc., are especially hurtful, chiefly from the mechanical effects upon the delicate pulmonary tissues of the matter inhaled. No less prejudicial are occupations carried on in a heated and close atmosphere, as is often the case with compositors, goldbeaters, seamstresses,' etc.


So, in Alden's Encyclopaedia, vol. 9, tit. 'Consumption,' the following occurs: 'Often the workshops of tailors, printers, bakers, and other businesses carried on in close, ill-ventilated apartments by large numbers of working people, are nurseries of consumption.' We quote from a few more out of many authorities to the same effect: 'It is certain that much might be done to improve the public health in this respect by more attention on the part of employers of labor to the comfort and habits of those who are, in more senses than one, their 'hands' and the sources of their property. A certain kind of improvement has, indeed, been already effected by the improved living of the working classes during the last twenty years. Still it is well known and proved by careful inquiries that the workshops of tailors, printers, bakers, and other businesses carried on in close, ill ventilated **383 apartments by large numbers of workmen are, in a very aggravated sense, nurseries of consumption. * * * The cutters and needle grinders of Sheffield appear to owe their notoriously short lives to consumption brought on by the inhalation of metallic particles in the close and stifling atmosphere of their workshops. * * *


Even admitting, therefore, that the causes of consumption may be in part practically irremovable, there seems no reason to doubt that very much might be done to diminish *171 its prevalence, as well as to arrest its course when already formed, by due attention to the comfort of the laboring population, both in their dwellings and in the pursuit of their occupations.' 4 International Cyclopaedia, 286. 'Particular occupations predispose [to consumption], especially such as occasion constant inhalation of small particles.' 2 Johnson Cyclopaedia, 488. 'Thus tailors, seamstresses, and similar workers are especially prone to the disease. More especially is this true of occupations whose performance necessitates the inhalation of dust particles. * * * The dust particles act as irritants of the fine structures which line the air passages and vessels, inducing chronic changes, which in turn are liable to lead to consumption.' 3 Chambers' Encyclopaedia, 438. 'The bacillus of tuberculosis finds, indeed, the most favorable conditions for its existence in the squalor of congested slums, in the foul atmosphere of dusty workshops, in close courts, alleys,' etc. 70 Fortnightly Review, 308.


'A very large number of the most efficient workmen employed in quarries, metal works, cotton and wool manufactories, print trades, and many other occupations exposing them to bad air and dust, fall victims to this infection.' 194 Edinburgh Review, 444. 'Since statistics still show that the mortality from phthisis in people who follow certain trades is much greater than in others, there can be no doubt of the causal relationship between occupation and pulmonary disease and of dust being the causa causans. * * * In 1866 it was demonstrated that * * * two kinds of occupation had long been recognized as hurtful, viz., (1) those that give rise to mechanical or chemical irritation of the air passages by dust, grit, or fluff being diffused through the atmosphere; (2) those in which the operatives are exposed to abrupt changes of temperature.' The Lancet, vol. 165, p. 1345. 'Living in a close atmosphere and in a high temperature, bakers are subject to lung diseases, more especially phthisis.' 5 Reference Handbook of Medical Science, 276.*172  'Those engaged in carding of cotton and workers in flax, hemp, tobacco, and flour, and chaff cutters suffer in the same manner, but to a less degree, than such as are compelled to inhale more decidedly irritating particles.' Fowler & Godlee's Diseases of the Lungs, 272. 'Dusty occupations, as in the case of millers, bakers, knife grinders, stonemasons, and the like, are fraught with special dangers to vulnerable persons.' 5 Allbutt's System of Medicine, 229. 'The inhalation of impure air in occupations associated with a very dusty atmosphere renders the lungs less capable of resisting infection.' Osler's Practice of Medicine, 269. 'Dusty occupations make people prone to disease.


The statistics of Berlin as to street cleaners, cabmen, coal workers, and miners show this.' 35 Journal Am. Med. Assn. 1028. 'The question as to what business had best be carried on by tuberculosis patients is treated of by Ambler. * * * The butchers, he thinks, generally possess an immunity--at least that has been his experience; but bakers are particularly susceptible.' 37 Id. 1068. 'Other vegetable dusts of less potency, which are little less injurious in results than mineral dusts, are flour and starch, which seem to operate rather by obstruction than by irritation.


Bakers, confectioners, and pastry cooks represent a body of tradesmen exhibiting hygienic conditions of a common character, the principal of which are exposure to heat from the ovens, dust, steam, variations of temperature, in too many instances unhealthy bake houses, fatiguing movements necessitated where kneading is done by hand, disagreeable emanations from materials used, prolonged hours of work, more or less night work, and loss of rest. To these evils of their trade the working bakers often add intemperance and irregular living. My own senses also make me conscious of a disagreeable, sickly smell much like that of heated bones, superadded to the steam and other fumes.


There are, in brief, many incidents in the occupation of baking which reduce vital energy, predispose *173 to lung affections, and shorten life.' Arlige, Diseases of Occupations, 255. The occupations of rope makers, carpet makers, bakers, etc., 'being essentially dust-producing processes, they one and all induce among workers excessive suffering from pulmonary affections. Although the mortality of these workers from phthisis and other lung diseases is considerably below that of metal workers, nevertheless it is in every case inordinately high, exceeding the mortality of agriculturists by proportions varying from 77 to 120 per cent.' Latham's Register General's Report, 148.


According to the data presented by Dr. C. Moeller in his work on Hygiene of the Baker Industry (page 295), 'of bakers dying between the ages of 45 and 65, twenty-five per cent. died from chronic bronchitis or related diseases.' He points out 'the persistency of the flour dust and starchy particles in the bronchial tubes, and even in the lungs' by quoting a medical authority to the effect 'that even two and a half weeks after leaving the employment starchy particles and other evidences of flour dust had been found in the expectoration of bakers examined.' According to the tables of comparative mortality in the federal census of 1900, the number of deaths among bakers and confectioners **384 was 3.2 per cent. greater than the average of general industrial occupations. These tables are somewhat favorable to bakers between the ages of 15 and 44, but are unfavorable to them between the ages of 45 and over, the average being as stated above. See, also, 1 Parke's Manual of Practical Hygiene, 133; 62 Medical Record, 334; Medical Examiner and Practitioner, Nov. 1902, tit. 'Occupations'; Id. July, 1901, tit. 'Occupation as Affecting the Death Rate.' The heaviest death rate in England falls to cabdrivers, painters, printers, tailors, and bakers. Mulhall's Dictionary of Statistics, 195. Statistics relating to 39 trades in England and Wales show that more bakers have consumption than the average of those engaged in other vocations, and the *174 table of male mortality in Paris shows higher death rate among bakers than in all but five out of twenty of the common callings of life. Id. 688.


 While the mortality among those who breathe air filled with minute particles of flour is less than among those who work in stone, metal, or clay, still it seems to be demonstrated that it is greater than in avocations generally. The dust-laden air in a baker's or confectioner's establishment is more benign and less liable to irritate than particles of stone or metal; hence, while bakers are classified with potters, stonemasons, file grinders, etc., still they are regarded as less liable to pulmonary disease than other members of the class. The evidence, while not uniform, leads to the conclusion that the occupation of a baker or confectioner is unhealthy, and tends to result in diseases of the respiratory organs. As statutes are valid which provide that women or children shall not be employed in any manufacturing establishment more than a certain number of hours in a single day, so I think an act is valid which provides that in an employment which the Legislature deems, and which is in fact, to some extent detrimental to health, no person, regardless of age or sex, shall be permitted or required to labor more than a certain number of hours per day or week. Such legislation, under such circumstances, is a health law, and is a valid exercise of the police power.


 I vote for affirmance.


O'BRIEN, J. (dissenting).


It will be seen from an examination of the law that there is no prohibition against the act of the servant himself in working longer than the statutory time. He may work as many hours as he likes during the day, and he violates no law and commits no offense whatever. So the broad question is whether a statute which makes it a crime for the master to permit his servant to do what the servant has a perfect right to do can be a valid law. No restrictions are imposed upon the servant with respect to the hours of labor or otherwise. As already remarked, he has a perfect right to work as many hours in a day or week as he may want to, but the master must see to it, at the peril of committing a crime, that his servants are driven out of the building the moment the clock registers the requisite 10 hours, and that, too, without regard to the conditions and circumstances affecting the business or the interests of the master. It is a crime for the master to require or permit his servant to work over the statutory time, no matter how willing or even desirous the servant may be to earn extra compensation for overwork. The master is forbidden to contract with his servant for longer hours and extra pay, no matter what may be the wants or necessities of the business, or the judgment or will of the servant with respect to such a contract. It is obviously one *178 of those paternal laws, enacted doubtless with the best intentions, but which in its operation must inevitably put enmity and strife between master and servant. They are not left free to make their own bargains in their own way, but their mutual interests are governed by statute.


Work of the same general character is exacted from cooks and domestic servants in practically*180 all the private houses in the land, and to a great extent in hotels, restaurants, and other public places. It would be absurd to say that all, or even the greater part, of the biscuit, bread, cake, and confectionery consumed in this state comes from what are called bakeries. The law does not even apply to bakers in the small towns and villages who do their own work. It applies only to bakers who find it necessary to employ labor, and they alone are subjected to criminal prosecution in case they permit the servant to work more than 10 hours in a day, even though the servant is willing, and is given extra compensation. The baker is forbidden, under the penalty of fine and imprisonment, to contract or agree with his servant upon the hours of labor in such way as would be mutually beneficial, but his business is practically regulated by statute. If, for any reason, he suffers or permits his servant to work an additional half hour beyond the statutory time, his liberty and his property are put at the mercy of the servant, who may procure him to be arrested and imprisoned.


It does not appear from the record in this case, or in any other way, that there is anything in the business or vocation of a baker that would authorize the Legislature to impose such criminal penalties upon him for permitting his servant to work more than 10 hours in the day, or to restrict his freedom of contract, which is a right enjoyed by all other employers of labor. The guaranties of the Constitution may be invaded without any physical interference with the person or property of the citizen. He is deprived of his property within the meaning of the Constitution when arbitrary and unnecessary restrictions are imposed upon his conduct of any lawful business, and when he is deprived of the right to make contracts for the transaction thereof. Liberty, in its broad sense, means the right, not only of freedom from actual restraint of the person, but the right of such use of his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel those rights or restrict his freedom of action, or his choice of *181 methods in the transaction of his lawful business, are infringements upon his fundamental right of liberty, and are void. Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636. They cannot and should not escape the scrutiny of the courts merly because they are made to assume, by argument or otherwise, the guise of police regulations.


 The statute in question deprives the defendant of the equal protection of the law, since it enacts that certain acts or omissions on his part concerning the conduct of his business and his relations to his own servants are crimes, and punished criminally, which, as to all the rest of the community not within the terms of this law, are entirely innocent. The very small fraction of the community who happen to conduct bakeries or confectionery establishments are prohibited, under pain of fine and imprisonment, from regulating the conduct of their own business by contracts or mutual agreements with their employes, whereas all the rest of the community who find it necessary to employ labor in rpivate business may do so. Class legislation of this character, which discriminates in favor of one person and against another, is forbidden by the Constitution of the United States, if not by the Constitution of the state; and so it has been held by the Supreme Court of the United States and by this court. **387Gulf, C. & S. F. R. Co. v. Ellis,  165 U. S. 150, 17 Sup. Ct. 225, 41 L. Ed. 666; Cotting v. Kansas City S. Y. Co., 183 U. S. 79, 22 Sup. Ct. 30 46 L. Ed. 92; Connolly v. U. S. P. Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; People v. Orange County Road Constr. Co., 175 N. Y. 87, 90, 67 N. E. 129.


It is, I think, quite obvious that the legislation in question is, upon its face, in conflict with the constitutional guaranties referred to, unless it can be brought within the scope of the police power. That is the only ground upon which the statute is defended by the learned district attorney. He contends that it is a health law, passed for the purpose of protecting the public health, or at least the health of those persons employed in bakeries. The argument is that the defendant was forbidden by the statute to permit his workmen to work more than 10 hours in a day, to the end that his customers might have wholesome bread, biscuit, and confectionery; whereas, if they *182 were permitted to work 10 1/2 hours in the day, the product of the bakery would be unwholesome or dangerous to health. What possible relation or connection the number of hours that the workmen are permitted to work in the bakery has or can have to the healthful quality of the bread made there is quite impossible to conceive. The baker in the small towns, or even in the large towns, who does his own work, and does not employ labor, may work day or night without fear of molestation, since no one thought it necessary to protect the public against his unwholesome product. It has already been observed that the law does not impose any penalties or restrictions upon the workman himself for working too much, and, if the purpose was to protect his health against his own avarice or his own misdirected energy, it is quite remarkable that it did not at least forbid him from working more than 10 hours in a day.

It will not do to say that the Legislature, in enacting the statute in question, may have thought that it was a health law, or had some relation to health. The action of the Legislature, or its views or reasons for the passage of the law, does not conclude the courts, but they must determine for themselves whether in any given case the legislation which is claimed to be an exercise of the police power is really what it is claimed to be. Every lobor law, however stringent and arbitrary, could just as well be upheld upon the ground that it is a health law; but in all the discussions that have been had in the courts for many years concerning the validity of legislation of this character there are to be found but very few cases where it was even claimed that the statute was enacted for the purpose of preserving or promoting health, or that it had any relation whatever to that subject. When it is manifest, as it is in this case, that the law has no relation whatever to the subject of health, and that the its real object and purpose was to regulate the hours of labor between master and servant in a business which is private, and not dangerous to morals, or to health, freedom to contract with each other, defining their mutual obligations, cannot be prohibited without violating the fundamental law.

 The bakers' vocation is one that has existed practically in *186 all ages and in all countries. Wherever cereals are converted into bread, the standard food of the human race, except possibly as to those races that are considered savage or semi savage, the making of bread is one of the most common employments. The process is familiar to the domestics in every public or private house in the land, as well as in the places called bakeries, where bread is made for sale to the public. It has never been supposed that it was a trade or vocation that was or might be dangerous to health, morals, or good order, or that there was anything about it to justify legislation restricting the right of the master and servant to make their own contracts, express or implied, with respect to hours of work or the terms of employment. There is nothing in the record before us from which it can be inferred that there was any ground for the passage of the statute as a police regulation for the protection of health, morals, or good order, and hence it cannot be upheld as an exercise of the police power. It is a plain discrimination against a limited class of people who happen to be obliged to employ labor in the manufacture of bread, biscuit, or confectionery in those places called bakeries. This relatively small class are restricted by the statute to the regulations there prescribed with respect to the hours of labor by their employes, and are prohibited from agreeing with them as to the time they are to work, even though extra pay should be given for overwork--a right which the law gives to all other persons employing labor. If the Legislature can do all this, then the right to enact what wages the servant shall receive per day or per hour must necessarily follow as an inevitable conclusion. A statute **389 fixing the wages of the servant at such a sum as to enable him to live more comfortably could be defended as a health law by the same argument and authority adduced in support of the section of the present law, the violation of which is the only crime charged.

 It is doubtless within the power of the Legislature to enact that a ton of coal or a bushel of wheat shall contain a certain number of pounds, but it cannot prohibit parties from entering into contracts to the effect that a ton of coal or a bushel of *187 wheat shall contain more or less than the quantity prescribed by statute. When there is no contract regulating the matter, and there is a dispute between the parties as to what constitutes a ton of coal or a bushel of wheat, the statute would doubtless be available to settle the controversy. So in the case of the master and servant with respect to the number of hours that shall constitute a day's work. The Legislature may no doubt define what is or shall constitute a day's work, but it cannot prohibit the parties from making agreements for themselves, and then custom or contract, express or implied, would control the mutual obligations of the parties.

 The facts stated in the indictment do not constitute a crime, and, therefore, the demurrer must be sustained, the judgment of conviction reversed, and the defendant discharged.

BARTLETT, J. (dissenting).

 I agree with Judge O'BRIEN for reversal. In one of the encyclopaedia authorities cited for respondent it is said: 'Bakers and confectioners who, during working hours, constantly breathe air filled with impalpable powder, resulting from the grinding of grain and loaf sugar into the finest dust, have a tendency to consumption,' etc. There is no evidence in the record before us warranting the conclusion that bakers are subjected, in this state, to any such peril, if any there be, as might result from grinding the articles they use. It is common experience that the baker, like the cooks in hotels, restaurants, and private families, has provided for him in his business flour, sugar, and the other ingredients duly prepared for immediate use. The claim that the compounding of these constitutents, so prepared, in the business of a baker, is an unhealthy occupation, will surprise the bakers and good housewives of this state.

The grinding of steel, like the needle grinding of Sheffield, England, and of other similar materials and substances, causing clouds of impalpable dust, is not to be confounded with the avocation of the family baker, engaged in the necessary and highly appreciated labor of producing *188 bread, pies, cakes, and other commodities more calculated to cause dyspepsia in the consumer than consumption in the manufacturer. The country miller of 50 years ago, who passed a long and happy life amid the hum of machinery and the grinding process of the upper and nether stones, little dreamed of a coming day when the Legislature, in the full panoply of paternalism, would rescue his successor from the appalling dangers of the life he led until old age summoned him to retire.

It has been frequently said that the limits of the police power cannot be accurately defined; that it is not desirable the Legislature should be thus trammeled. When this court held that the Legislature acted in the legitimate, undiscriminating exercise of the police power in compelling all barbers to observe strictly the first day of the week, commonly called 'Sunday,' except in the village of Saratoga Springs and the city of New York, the legal profession doubtless concluded that the elasticity of the undefined had arrived at its Ultima Thule. People v. Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707. That this conclusion was erroneous is shown by the fact that the case is now doing duty against the baker, when men in kindred occupations are permitted to work as many hours as necessity dictates.

 Another question in this case is whether section 110, contained in article 8 of the labor law (chapter 415, p. 485, Laws 1897), is within the police power. This section is contained in article 8, which consists of sections 110, 111, 112, 113, 114, and 115 (pages 485-487). I am of the opinion that all the sections of said article, excepting section 110, are within the police power, relating as they do to sanitary conditions concerning the business of a baker. Placing section 110, relating exclusively as it does to hours of labor in bakeries and confectionery establishments, in article 8, does not necessarily bring it within the police power. In a recent case this court said: 'In the interest of public health, of public morals, and of public order, a state may restrain and forbid what would otherwise be the right of a *189 private citizen. It may enact laws to regulate the extent of labor which women and children or persons of immature years shall be allowed to perform, and prohibit altogether their employment in dangerous occupations. Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383; Tiedeman's Police Power, §  85.' People v. Orange County Road Cons. Co., 175 N. Y. 84, 87, 88, 67 N. E. 129, 130. The state may also regulate the hours of labor in deep and unhealthy mines, and in any vocation where it is pursued at the risk of health and life. It is because I believe that the occupation of a baker does not fall within these general principles, and the array of authorities cited, I vote for reversal.