Plaintiffs Brief — Lochner v. New York

-IN THE

Supreme Gourt of the Gnited States,

OCTOBER TERM, 1904.

—

JosepH Locuner, Plaintiff in )

Error (Defendant below),

” — No. 292

Tun PEOPLE OF THE STATE OF

New York, Defendant in Er-

ror (Plaintiff below). i

*

IN ERROR TO THE COUNTY OOURT OF

ONEIDA COUNTY, STATE OF

NEW YORK.

*

*

BRIEF FOR PLAINTIFF IN ERROR.

*

STATEMENT.

This action was commenced in the County Court

of Oneida County in the State of New York. It

was a criminal procecding in which the defendant,

Joseph Lochner, was charged with a misdemeanor,

in that he violated Section 110, of Article Eight, of

Chapter 415, of the Laws of 1897, of the State of

New York, known as “The Labor Law,” which

said Section reads as follows:

“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

im any one day, unless for the purpose of mak-

ing 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.”

The indictment charges that on the 21st day of

December 1899, he, the plaintiff in error, was ar-

rested upon complaint of one of his employees for

violating the law in permitting an employe to

work in a bakery more than sixty hours in any one

week. That he was convicted in the County Court,

and fined twenty dollars, or in default thereof,

stand committed to the County Jail for twenty

days, and that he paid the fine; that after such con-

viction the defendant wrongfully, unlawfully and

knowingly, with intent on his part to violate the

law, permitted and employed another employe

named, to work more than sixty hours in one week

during the week commencing April 19th, and end-

ing April 26th, 1901, in the defendant’s biscuit,

bread and cake bakery and confectionery establish-

ment, thereby committing a misdemeanor as a sec-

ond offense, contrary to the form of the statute in

such case made and provided and against the peace

of the people of the State of New York and their

dignity.

The defendant demurred to the indictment on

two grounds, (1) that more than one crime was

charged and (2) that the facts stated did not con-

stitute a crime. The local court overruled the

demurrer and the different allegations in the in-

dictment were taken as true under Section 330 of

the Code of Criminal Procedure of said State; and

3

judgment of conviction was entered,

fendant sentenced to

ppeals, where the judg-

ment was again affirmed by a bare majority of the

Court.

The Statute upon which the judgment rests is to

be found in the Penal Code, Section 384-1, and

reads as follows:

“Any person who

ply with * * «#

meal food products is guilty

of a misdemeanor, and upon conviction shall

be punished for a first offense by a fine of

not less than fifty

dollars, or by im

thirty days,

The case was argued in the Ne

Courts upon the constit

constitutionality of

cle 8, of Chapter 415,

State of New York, al-

Article 14, Section I. of the

ASBIGNMENT OF ERRORS,

I,

That the court below erred in holding that Sec-

tion 110 of Article 8, of Chapter 415 of the Laws of

1897, of the State of New York, entitled “The Labor

Law,” does not violate Article 14, Section 1, of the

Constitution of the United States, in holding that

the facts us wet forth in the indictment constitute a

crime,

II.

That the court below erred in holding that See-

tion 110 of Article 8, of Chapter 415 of the Laws of

1897 of the State of New York, entitled “The Labor

Law” was constitutional and not in violation of

Article 14, Bection 1 of the Constitution of the

United States,

III.

That the court below erred in holding thta Sec-

tion 110 of Article 8, of Chapter 415 of the Laws of

1897 of the State of New York, entitled “The Labor

Law” is a health measure, and is a reasonable and

proper exercise of the police power of the said State

of New York,

IV.

That the court below erred in holding that See-

tion 110 of Article 8, of Chapter 415 of the Laws of

is07 of the State of New York, entitled *The Labor

Lan“ did not violate the Ist Section of the 14th

Amendment of the Constitution of the United

States, in that it did not abridge the privileges and

5

immunities of the Citizens of the United States in

respect to the freedom of individuals to enter into

contract with oae another.

V.

That the court below erred in holding that See-

tion 110, of Article 8, of Chapter 415 of the Laws

of 1897, of the State of New York, entitled “The

Labor Law,” did not violate Section 1 of Article

14 of the Constitution of the United States, in that

it did not deprive plaintiff in error of his liberty

and property “without due process of law,” in that

it did not permit him to agree with his employees

upon the number of hours per day and week in

which they should work,

VI.

That the court below erred in holding that See-

tion 110 of Article 8, of Chapter 415 of the Laws

of 1897, of the State of New York, entitled “The

Labor Law” does not violate Article 14, Section 1

of the Constitution of the United States, in that

it denies to plaintiff in error the equal protection of

the laws, And in holding said act is not class leg-

islat ion and is equal and uniform.

VII.

That the court below erred in holding that Bee-

tion 110 of Article 8, of Chapter 415 of the Laws of

1897 of the State of New York, entitled The Labor

law” does not violate Article 14, Section 1 of the

Constitution of the United States, in that said law

fixes an arbitrary number of hours during which

employees in bakeries in said State shall be em-

ployed and allowed to work, thus discriminating

between such employees and employees in other

lines of business, and in refusing to allow such

employees to contract with their employers for

6

extra hours of work, as in other occupations they

are allowed to do.

VIII.

That the court below erred in holding that See-

tion 110, of Article 8, of Chapter 415, of the Laws

of 1897 of the State of New York, entitled “The

Labor Law“ does not violate Article 14, Section 1

of the Constitution of the United States, in that

by reason of the nature of the bakery business it

is sometimes necessary to contract with employees

for extra hours of labor, in order to save and pre-

nerve the property of the employer; and by the de-

cision of the court below, the plaintiff in error is

deprived of his property without due process of law.

We rely upon all of these assignments of error,

which express in various forms, the manner in

which the statute under review violates the pro-

visions of the Fourteenth Amendment,

We shall take up the questions raised herein by

the assignment of errors in the following order:

The statute in question denies to the plaintiff

in error the equal protection of the laws, It ap-

pears from sections of The Labor Law,” following

the section under review, from statutes and decis-

ions of other States, and from facts within the

common knowledge of mankind, that there are

many other persons engaged in the same line of

business that are not subject to the restrictions and

penalties of the statute.

The statute in question is not a reasonable ex-

ercise of the police power, and this branch of the

case is discussed under two subdivisions ;

(a) From the standpoint of the trade ita.

(hb) From the standpoint of the decisions in-

terpreting the exercvine of the police power in con-

nection with the 14th Amendment of the United

States Constitution.

A review of the history of the legislation lead-

ing up to the adoption in its present form, of the

statute in question, showing that the first section

is clearly intended as a labor law, and not an exer-

cise of the police power of the State.

The case of Holden vs. Hardy (169 U. S. 366),

distinguished from the case at bar.

In the Appendix to this brief will be found the

following documents:

Sections 110, 111, 112, 113, 114 and 115 of Article

VIII of “The Labor Law,” Chapter 415, Laws of

1897 of the State of New Vork.

New York Penal Code, Section 3841, the statute

under which the plaintiff in error was indicted and

convicted.

Tables of various trades taken from the report of

the Bureau of Labor of the State of New York for

1900, showing that the baker's trade is fully up to

the average healthfulness of all trades; and also a

table of trades affecied by the inhalation of dust,

„te, in which the baking trade is not included.

Various high medieal authorities which we have

collected showing that the conclusions of Judge

Vann are not warranted,

1. The statute in question denies to certain persons

in the baking trade the equal protection of the

laws.

The legislation must affect equally all persons

engaged in the business of baking in order to con-

form to this provision of Article 14 of the United

States Constitution.

It really affecta but a portion of the baking

trade, namely, employes “in a biscuit, bread or cake

bakery, or confectionery establishment.”

It will be seen that this provision covers two

classes of workmen; namely, employes in biscuit,

bread or cake bakeries and employes in confection-

ery establishments, The former are bakers; the

latter are candy makers,

We are concerned only with the employes in bis-

cuit, bread and cake bakeries, They do not by any

means comprise all persons engaged in the business

of baking. While no figures are obtainable, it is

probably safe to say that at least one-third to one

half of the persons engaged in the baking business

are not within the prohibition of the statute,

The employers themselves, a large proportion of

whom personally engage in the baking trade, may

work 24 hours a day if they are so minded, There

are many small establishments where the proprie

tor does most of his own baking. There are aleo

bakeries where a number of the employers are in

partnership, and do all or mostly all of their own

baking.

Then again, the employes themselves may work

twenty-four hours a day, and they are not subject

to punishment for so doing, It is only when the

employer requires or permits an employe to work

beyond the prescribed time that the penalty of the

statute applies, If this is a health law, the em-

ployer himself should be restrained in the cause of

public health, and the employe should pot be al-

lowed to work more than the lawful number of

hours,

Then again, there is that very large class of bak-

ers who are employed in pie bakeries, hotels,

restaurants, clubs, boarding-houses and private

9

families, that are not within the terms of the

statute, The number of bakers employed in these

establishments are probably as numerous as those

employed in biscuit, bread and cake bakeries. They

are engaged in the same business, yet even the large

restaurants where great quantities of biscuit,

bread, cake and pie are turned out daily by journey-

men bakers; the great hotels with their army of

bakers, doing the same work; the clubs which are

becoming more numerous every year, and where a

considerable part of the business population of

New York City take their noon-day meal; the great

number of boarding houses, some of them employ-

ing a number of skilled bakers, the pie bakeries

such as the Consumers Pie Baking Company, the

New York Pie Baking Company, and many more;

are none of these entitled to the “equal protection

of the laws“?

Then there is the American housewife, Here is

the real artist in biseuits, cake and bread, not to

mention the American pie, The housewife cannot

bound her daily and weekly hours of labor, She

must toil on, sometimes far into the night, to satis-

fy the wants of her growing family.

It seems never to have occurred to these ungal-

lant legislators to include within the purview of

the statute these most important of all artiste in

this most indispensable of trades,

Another serious objection to the statute is that

it affects all employes in biscuit, bread and cake

bakeries, This would not mean the bakers alone

but the drivers, cash girls, counter girls, bookkeep-

ers and others, Is their trade one within the scope

of the police power? And is it more dangerous to

wait on a counter, keep books or drive for a baker

than for a butcher or grocer? This feature alone

is fatal to the statute,

In the recent case of Union Rewer Pipe Company

10

(184 U. S., 540), the discrimination in favor of

‘agricultural products and live stock in the hands

of the producer or raiser, in the Illinois Trust Act

of June 20th, 1893, exempting them from the pro-

visions of the statute, was held to render the act

repugnant to the provisions of the United States

Constitution, 14th Amendment, in respect of the

equal protection of the laws, The different lines

of business affected by the Trust Act in question

are very numerous, yet the exception of two lines

of business was held to invalidate the statute, Can

it then be said that the statute in question, which

only affects a part of the bakery business, is not

repugnant to the Constitution in a much greater

degree?

The reason why bakers employed in hotels, clubs,

restaurants, boarding houses and private houses,

are not protected by the provisions of the statute,

is not hard to find. The necessities of these estab-

lishments are such that during busy seasons it is

absolutely necessary to keep their bakers until the

business of the day or the night is finished, It

would be impossible for these bakers to get employ-

ments in such establishments unless they were will-

ing to work as long as their services were required,

Nor is it true that the bakers who are within the

protection of the statute are as a rule, employed in

less desirable and healthful surroundings than

those who are not within the provisions of the

statute, The average bakery of the present day is

well ventilated, comfortable both summer and win-

ter, and always sweet smelling. The other class of

establishments, where cooks as well as bakers are

employed, are as a rule, much more close and ill

' smelling than the bakeries. Many modern baker-

ies resemble factories in their general appearance,

They have light comfortable places for their work-

men, while the average kitchen even of the finest

hotels, in the cities at least, are usually under-

ground, with great open ranges which make them

intensely hot. The baker's oven, on the contrary

is made of brick, with walls several feet

ness, generally lined with sand to keep the heat

within the oven, The principle on which they are

built is to keep the heat within the oven and pre-

vent its radiating into the outside air. Inspection

of any bakeries in any city will show that the

average bakery is much more desirable as a place

to work in than the average kitchen.

A valuable illustration of the facet that this

statute offends against this clause of the 14th

Amendment is found in some of the labor statutes

of the several States. In California we find the fol-

lowing statute:

„It shall be unlawful for any person en-

gaged in the business of baking to permit or

engage others in his employ, to engage in the

labor of baking for the purpose of sale be

tween the hours of six o’clock P, M. on Batur-

day and six o'clock '. M. on Sunday, except

in the setting of sponge, preparatory to the

night's work; provided, however, that restau-

rants, hotels and boarding houses may do such

baking as is necessary for their own consump-

tion.”—-Exparte Westertield, 55 Cal. 550.

Jt will be seen that this statute is first general

in its terms, and affects “any person engaged in the

business of baking.” It then excepts from the pro-

hibition of the statute, restaurants, hotels and

boarding houses.” This statute clearly recognizes

the fact that we are here calling to the attention of

the court; namely, that persons engaged in the

occupation of baking are not confined to those em-

ployed in biscuit, bread and cake bakeries.

In the statute now before the Court we find

12

reference to other bakers than those in biscuit, bread

and cake bakeries, In Section 111 it refers to

rooms occupied as biscuit, bread, pie or cake baker-

jes; and the same words are used again in the lat -

ter part of Section 112. Section 113 speaks of the

“bake-room of any bakery, hotel or public

restaurant.” Here is a clear recognition of the

carrying on of the baking trade in pie bakeries,

hotels and public restaurants,

It seems therfore perfectly clear that this

statute denies to a substantial part of the baking

trade the equal protection of the laws. The em-

ployer of bakers in biscuit, bread and cake bakeries

is subjected to heavy penalties of fine and imprison-

ment for requiring or permitting his men to work

more thar the prescribed number of hours, whereas

employers of the same class of men doing the same

work throughout the state are exempt from the

isions of the statute, This brings the statute

clearly within the decisions under this part of the

14th Amendment.

2. The authorities upon this subject are uniform

and controlling in the case at bar.

It must be remembered that the Constitution it-

self says that no state shall “deny to any person

within ita jurisdiction the equal protection of the

laws.” It does not say, “no considerable number of

persons,” but “any person.” And this plaintiff in

error may appeal with confidence to the supreme

law of the land against this law which singles out

a certain number of men employing bakers, and

permits all others similarly situated, including

13

7

many who are competitors in business, to work their

employes as long as they choose,

Professor Freund, in his work on the Police

Power, says at p. 633:

“Equality ix for the purpose of controlling

the validity of legislation, a more definite con-

ception than liberty, for it has the advantage

of being measurable. Government cannot be

conceived without an infringement of liberty,

while the claim of equality is consistent, in

idea at least, with almost any form of govern-

mental power,

Again, at page 635, he says:

"It is an elementary principle of equal jus

tice, that where the public welfare requires

something to be given, or done the burden be

imposed or distributed upon some rational

basis, and that no individual be singled out to

make a sacrifice for the community,”

This Court has said that the guarantee of the

equal protection of the law means that no person

or class of persons shall be denied the same pro-

tection of the laws which is enjoyed by other per-

sons or other classes in the same place and in like

circumstances,”

Missouri v. Lewis (101 L. 8. 22, 31).

In the case of Connolly vs. Union Rewer Pipe

Company, (1840. 8. 540) Mr. Justice Harlan says,

at page Dds;

"The State has undoubtedly the power, by

appropriate legislation, to protect the public

morals, the public health and the public safety ;

but if, by their necessary operation, its regula-

tions, looking to either of those ends, amount

14

to a denial to persons within its jurisdiction of

the equal protection of the laws, they must be

deemed unconstitutional and void.”

In the case of Barbier v. Connolly, (113 U. 8. 27)

Mr. Justice Field says, at page 31;

“The Fourteenth Amendment in declaring

that no State shall deprive any person of life,

liberty or property without due process of law,

nor deny to any pervon within its jurisdiction

the equal protection of the laws, undoubtedly

intended not only that there should be no ar-

bitrary deprivation of life or liberty, or arbi-

trary spoliation of property; but that equal

protection and security should be given to all

under like circumstances in the enjoyment of

their personal and civil rights, that all persons

shout be equally entitled to pursue their hap-

piness and acquire and enjoy property, that

they should have like access to the courts of

the Country, for the protection of their persons

and property, the prevention and redress of

wrongs, and the enforcement of contracts; that

no impediment should be interposed to the pur-

suits of any one except as applied to the same

pursuits by others under like circumstances;

that no greater burdens should be laid upon

one than are laid upon others in the same call-

ing and condition, and that in the administra-

tion of criminal justice no different or higher

punishment should be imposed upon one than

such as is subscribed to all for like offences,”

Judge O'Brien, in his dissenting opinion, says

(Record, Folios 58, 61);

“Work of the same general character is ex-

et from cooks and domestic servants in

practically all the private houses in the land,

15

und 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 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 ten 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 mutual-

ly beneficial; but his business is practically

regulated by statu.

Confirming the views of Judge O’Brien we find

in the report of the New York Factory Inspector's

Bureau to the Legislature of that Btate, of 1897,

that the number of bakeries inspected during that

year was 3828, of which number more than one

half employed but two, one and no journeyman bak-

ers. It is evident that in bakeries of this character

the employer either does his own baking without

any help, or he has the aid of members of his family,

or in some causes, one or two bakers additional to

hisown labor, The members of the families of these

small bakers cannot be classed as employes, and

yet they do the same work, and like the employer

himself, are not subject to the provisions of the

statute,

In discussing the inequality of the Ilinois Trust

Act the Court calls attention to the freedom ac-

corded by the law to agriculturisie and live stock

raisers through the exception allowed in their favor

16

and to the possibilities of the exercise of that free-

dom in direct opposition to and subversion of the

geneval scheme of the act as intended by the Legin-

lature. And this although the exception equally

applied to all members of the agriculturists and

live stock raisers as a class, while in the case at bar,

the statutory restraints are limited to a small part

of the members of the class sought to be effected by

it.

If the exception accorded to two classes of trade

by the Illinois Trust Act was deemed sufficient to

hold the burden imposed upon a number of otner

trades and callings, not at all affected by the trade

competiton of those excepted, as unequal, how much

more so must this principle apply to the case at bar

where the inequality extends to members of a class

and where the exemptions, which in effect are en-

joyed by large numbers of bakers, accord them a

distinctive economic advantage over those subjected

to the rigors of the law,

The principle of equality means that equal con-

ditions must receive equal treatment (Freund on

Police Power, page 633),

The Stock Yards Act of Kansas attempted to

prescribe rules and rates for the Kansas City Stock

Yards Company exempting numerous small stock

yard owners, The statute also conferred certain

exclusive stock yard privileges upon the company

as against the other dealers, This act was declared

unconstitutional, Cotting vs. Goddard, 1838 LU. 8.

79-02,

On page 282, Judge Cooley in his book on Con-

stitutional Limitations, says: “And if a corpora-

tion has power to prohibit the carrying on of dan-

gerous occupations, within its limits, a bylaw

which should permit one person to carry on such an

occupation and prohibit another, who had an equal

right from pursuing the same business, or which

17

should allow the business to be carried

isting; buildings but prohibit the erection

for it, would be unreasonable,”

hair cut to the uniform length of one inch,

invalid as being directed specially against

Chinese, Tin Bing vs. Washburn, 20 Cal, 5344;

also Yick Wo vs, Hopkins, 118 U, . 856,

Classification must be based upon some differ.

ence bearing a reasonable and just relation to the

act in respect to which the classification is at-

tempted, but no mere arbitrary selection can ever

be justified by calling it classification, The fact

that all persons and corporations brought under

the influence of an act, are subjected to the same

liabilities and duties under similar circumstances,

is sufficient to sustain un act as against the charge

of the denial of the equal protection of the laws.

Atchison, Topeka & Banta Ve E. R. Co, va, Mat-

thews, 174 U. . 105, Clans legislation of the char-

acter of the act in imue enacted by the States which

discriminates in favor of one person or set of per-

sons and against another or others is forbidden by

the Fourteenth Amendment to the United States

Constitution, Gulf C., & F“. H. Co, vs, Bilis, 165 U, N.

150; Cotting vs. Kansas City . V. Co., 188 U. 8.

79; Connolly ve. I“, . L'. Co, 184 7, K. 540 People

v8, Orange County Koad Construction ., 175 N.

V. 87-00,

“In Vick Wo vs, Hopkins, IIS I“, S. S56, a case

Where a municipal ordinance of Ban Prancisco de

signed to prevent Chinese from carrying on the

laundry business, was adjudged void, the Court

says: This Court looked beyond the mere letter of

the ordinance to the condition of things as they ex-

isted in Ban Pranciseo, and saw that under the

;

guise of regulation an arbitrary classification was

intended and accomplished.

See also the language of Mr. Justice Matthews in

Yick Wo vs. Hopkins (118 U. S. 356, 369) “the

equal protection of the laws is a pledge of the pro-

tection of equal laws.”

Gibbons vs. Ogden (9 Wheat., 1, 210).

Sinnot vs. Davenport (22 How. 227, 243).

Missouri vs. Lewis (101 U. S. 22, 31).

Butcher’s Union Co. vs. Crescent City Co. (111

U. S. 746).

Barbier vs. Connolly (113 U. S. 27, 31).

Yick Wo vs. Hopkins (118 U. S. 356, 369).

Gulf C. & F. R. Co. vs. Ellis (165 U. S. 150).

Missouri K. & T. R. Co. vs. Haber (169 U. S. 613,

626).

Cotting vs. Kansas City S. Y. Co. (183 U. S. 79).

Connolly vs. Union Sewer Pipe Company (184

U. S. 540).

People vs. Orange County Road Cons. Co. (175.

N. V. 84).

3. The Statute in Question is Not a Reasonable

Exercise of the Police Power.

We will discuss this branch of the case under the

following subdivisions:

(a) From the standpoint of the trade itself.

(b) From the standpoint of the decisions inter-

preting the exercise of the police power in connec-

tion with the 14th Amendment of the United States

Constitution.

(a) The business of the baker is one of the old-

est known trades.

The trade of the baker in years gone by, when

the kneading of the “dough” or “sponge” was done

by hand, may have caused some flour dust. But the

contention that flour dust is at all unhealthful is

disputed by high medical authority. It is doubtless

also true that the quarters of the bakers have in the

past been highly unsanitary. Regulations made by

law for the purpose of bringing about sanitary con-

ditions in bakeries, by providing for a certain

amount of air space and ventilation, by excluding

domestic animals from premises where baking is

conducted, by forbidding sleeping apartments,

privies, ete., from opening into the bake-room, are

all provisions clearly within the police power, and

highly beneficial to the trade and to the public.

The trade of the baker has, however, been much

changed in more recent times, by the introduction

of machinery into the preparation of the dough.

The biscuit bakeries are conducted on a

very large scale, all of the main processes are

conducted by machinery, the work is usually done

in large, well lighted buildings where the trade of

the baker is absolutely sanitary, and as healthful

as the best conditions and pleasant surroundings

can make them. All of the factories of the Ameri-

can Biscuit Company and the National Biscuit

Company are of this character. The bakery of the

National Biscuit Company on 10th Avenue, New

York City, is the largest bakery in the world and

covers two city blocks. Its employes number about

one thousand. The same thing is true of the large

bread bakeries scattered to-day through our great

cities. Large buildings, with many employes are

given up wholly to the making of bread, which is

distributed by wagons to the grocery stores and

private houses. These great factories are models

of cleanliness and healthfulness, yet they are with-

in the terms of the act.

20

The ordinary bakery has two shifts of men the

bread bakers who work at night, and the cake bak-

ers who work in the day-time. In almost every

bakery of this character in our large cities, which

has any considerable amount of business, mixing

machines are installed for making the dough or

“sponge.” These mixing machines absolutely re-

move any possibility of flour dust filling the air.

The cake bakers, who make all kinds of fancy cakes,

pies, ete., do not raise dust in their operations.

The most cursory examination of bakeries in any

considerable city in the country, will show that

for comfort, ventilation and healthful surroundings

the baker’s trade compares favorably with that of

any other important trade. The making of dough

may occupy an hour or two hours of the day’s

work. The rest of the day is occupied in mould-

ing the dough into bread and rolls and baking it.

And the mixing even in small shops, is now done

mainly by machinery. How then can the shorten-

ing of hours affect the question of flour dust?

The statute in question goes far beyond any pre-

vious attempt to regulate the ordinary pursuits of

mankind by legislative enactment under the guise

of the police power, if indeed, the Legislature ever

intended this to be a health regulation. Consider-

ing the statute from the standpoint of its reasona-

bleness as a health regulation, we therfore urge

that a very large proportion of the bakers affected

by the statute are employed in bakeries of the

classes above referred to, where their surroundings

cannot be reasonably objected to on the ground

which led a majority of the Court of Appeals of

New York to sustain this statute. Why should the

employes of the National Biscuit Company have

laws enacted governing their hours of labor on the

ground that their occupation is unhealthful? In

like manner, why should the proprietors of one of

—

our great bread baking establishments be arrested

and imprisoned for permitting their men to work

more than sixty hours per week, on the ground that

their health is endangered, or the health of the pub-

lic is endangered by the nature of their business?

Why should the numerous proprietors of first class

baking establishments throughout our great cities,

whose bakeries are well ventilated, clean and com-

fortable in every respect, with mixing machines to

handle the dough, and improved appliances of

every kind, be subjected to this alleged “health”

law?

In so far as the baker works under unsanitary

conditions, in small and poorly ventilated bake-

shops, his interests are protected by the other sec-

tions of this law. A proper enforcement of the

real health provisions of the statute will give him

healthful and desirable surroundings. Where

these ends are attained the Legislature has gone as

far in its interference with the private business of

the baker as a reasonable interpretation of the

police powers of the State will admit.

21

It was never the intention of our law-makers

nor the intention of the people in adopt-

ing the Federal and State Constitutions, to erect

a government so paternal in its character that the

treasured freedom of the individual and his right

to the pursuit of life, liberty and happiness, should

be swept away under the guise of the police power

of the State. And while it is difficult to define

the extent of the police powers of the States, this

court should not, under the plea of pro-

tecting the powers of the various States to guard

the lives, morals, welfare and safety of its citizens,

permit the States, little by little, to break down

and sweep away the most cherished rights of Ameri-

can citizenship. Each new attempt by the

States to interfere with the contract and property

r

32 *

— —

rights, and freedom to exercise a trade or calling

by the citizen, should be most closely and jealously

scrutinized by this court; and unless the justifica-

tion of the laws was reasonably clear and appar-

ent, the statute should be declared unconstitution-

al. To resolve every doubt in favor of the police

powers of the State, instead of resolving them in

favor of the liberty of the individual would soon

lead to absurd conclusions that are more consistent

with the autocratic governments whose day seems

rapidly passing, than to the great Republic whose

boast has been that the Federal Constitution se-

cured its liberties for all time against encroach-

ment from any source,

If this law can be sustained because a few bakers

may still be using old fashioned methods, whereby

for a few minutes in each day they may possibly

breathe a little flour dust into their lungs, why

should not the doctor be protected because he is

brought in contact by his trade with contagious

diseases? Or the lawyer, because his occupation

requires him to damage his eye-sight by poring over

badly printed law books and decisions of the

courts? Or the Wall Street operator because he is

kept in a condition of undue nervous excitement by

the gambling features of his business?

Judge Vann, of the New York Court of Appeals,

in his concurring opinion in this case, says

(Record, Folio 48): “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 employ-

ment. If such an occupation is unhealthy the Leg-

islature had the right to prohibit employers from

requiring or permitting their employes 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 public health and would pro-

23

mote the general welfare. As in the Jacobs case we

took judicial notice of the nature and qualities of

tobacco, 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 atmos-

phere of manufactories of bread and candy. Neces-

sarily in considering the subject we may resort to

such sources of information as were open to the

Legislature.” After quoting a number of medical

authorities, census reports and encyclopedias, some

of them evidently referring to places where the

flour was ground, others based entirely upon the

unhealthfulness of the apartments in which the

trades are carried on, and others showing that the

baker’s trade was about on the general average of

healthfulness, he concludes as follows (Record,

Folio 53), “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. * * * Such

legislation under such circumstances is a health

law, and is a valid exercise of the police power.”

Judge O’Brien, in his dissenting opinion in this

case says (Record, Folio 61) :

“What possible relation or connection the num-

ber of hours 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 con-

ceive. * * * There is nothing on the face of the

law or in its manifest operation to show that it has

any relation to the public health.”

These opinions are confirmed by the common

knowledge of mankind. Flour and meal are used in

all families. Has any member of the court found

flour dust in the air of his kitchen? On entering

the kitchen, one may see the steam from the kettle,

or scent the odor of the boiled dinner, but who has

24

been conscious of the presence of this death dealing

flour dust?

As Judge Bartlett points out in his dissenting

opinion (Record, Folio 67), the commodities of the

baker are “more calculated to produce dyspepsia in

the consumer than consumption in the producer.”

(b.) This statute cannot be sustained unless it

can be justified as a proper exercise of the police

power of the State of New York.

Blackstone defines the public police as the due

regulation and domestic order of the kingdom,

whereby the inhabitants of a state, like members of

a well governed family are bound to conform in

their general behavior to the general rules of pro-

priety, good neighborhood and manners, and to be

decent, industrious and inoffensive in their respect-

ive stations. 4 Bl. Com. 162.

Police is in general a system of precaution, either

for the prevention of crime or calamities. The

power is exercised for the prevention of offenses,

calamities, diseases, for charity, interior communi-

cation, police of public amusements, for recent in-

telligence and for registration. Edinburgh edition

of works of Jeremy Bentham, part IX. 157.

“The police of a state in a comprehensive sense,

embraces its system of internal regulation, by which

it is sought, not only to preserve public order and

to prevent offenses against the State, but also to

establish for the intercourse of the citizen with

citizens those rules of good manners and good neigh-

borhood, which are calculated to prevent a conflict

of rights, and to insure to each the uninterrupted

enjoyment of his own, so far as it is reasonably

consistent with like enjoyment of others. Cooley

Con. Lim. 572.

Kent says: But although property be thus pro-

tected, it is still to be understood that the law given

has the right to prescribe the mode and manner of

—

25

using it, so far as it may be necessary to prevent

the abuse of the right to the injury to others or of

the public. 2 Kent’s Comm. 340.

In the Slaughter House Cases (16 Wall. 36, 37),

Field, J., says: “All sorts of restrictions and bur-

dens are imposed under the police power, and, when

these are not in conflict with any constitutional pro-

hibitions or fundamental principles, they cannot be

successfully assailed in a judicial tribunal. * * *

But under the pretense of prescribing a police regu-

lation, the state cannot be permitted to encroach

upon any of the just rights of the citizen, which the

constitution intended to secure against abridge

ment.”

In re Jacobs (98 New York, 98), Judge Earl

Says, at page 108:

“The limit of the power cannot be accurately de-

fined and the Courts have not been able or willing

definitely to circumscribe it. But the power, how-

ever broad and extensive, is not above the constitu-

tion. When it speaks, its voice must be heeded. It

furnishes the Supreme Law, the guide for the con-

duct of legislators, judges and private persons, and

so far as it imposes restraints, the police power must

be exercised in subordination thereto.”

Again at page 110, he says:

“These citations are sufficient to show the police

power is not without limitations and that in its ex-

ercise, the Legislature must respect the great funda-

mental rights guaranteed by the Constitution. If

this were otherwise, the power of the legislature

would be practically without limitation. In the as-

sumed exercise of the police power in the interests

of the health, the welfare or the safety of the public,

every right of the citizen might be invaded and

to

6

‘every constitutional barrier might be swept away.

Under the mere guise of the police regulations, per-

sonal rights and private properiy cannot be arbi-

trarily invaded, and the determination of the Legis-

lature is not final and conclusive.”

Tiedemann on the Limitations of Police powers,

Says:

“Secion 178. Laws, therefore, which are design-

ed to regulate the terms of hiring in strictly pri-

vate employments, are unconstitutional, because

they operate as an interference with one’s natural

liberty in a case in which there is no trespass upon

private right and no threatening injury to the pub-

lic. And this conclusion not only applies to laws

regulating the rate of wages of private workmen,

but also any other law whose object is to regulate

any of the terms of hiring, such as the number of

hours of labor per day, which the employer can de-

mand. There can be no constitutional interference

by the state in the private relation of master and

servant except for the purpose of preventing frauds

and trespasses.”

See also Freund on Police Power, page 534.

> oD

“To prevent an abuse of the police power, for the

alleged protection of the health or safety or the

alleged prevention of fraud, the Court must be al-

lowed to judge whether restrictive measures have

really these ends in view. A remote and slight

danger should not be recognized as a sufficient

ground of restriction, and the provisions of the law

should be scrutinized in order to see whether they in

reality tend to effectuate their object.”

On the question of the reasonableness of an act,

to authorize it under the police power, the same

author says on page 58 of his book on Police Power:

27

“If reasonableness is understood to mean well

adapted to the end in view, there is practically no

judicial claim to control the judgment of the legis-

lature of what is reasonable. The Courts are cer-

tainly emphatic in their assertion that they have

nothing to do with the wisdom or expediency of

legislative measures. The question of judicial

power practically confines itself to a third meaning

of reasonableness, namely, moderation and propor-

tionateness of means to end.”

Where the ostensible object of an enactment is to

secure the public comfort, welfare or safety, it must

appear to be adapted to that end, it cannot invade

the rights of persons and property under the guise

of the police regulation, when it is not such in fact.

Eden vs. People, 161 III. 296. Ex Parte Jentsch 112

Cal. 468, Ritchie vs. People, 155 III. 98, Lake View

vs. Rose Hill Cemetery Co. 70 Ill. 191.

In re Jacobs (98 N. Y. 98) arose under a statute

forbidding the making of cigars in tenement houses.

There was no question but that this was intended

by the legislature to be « health regulation. The

court was unanimous that the statute was uncon-

stitutional and not a proper exercise of the police

power. It will be noticed that the court speaks of

the baker as one of the “innocuous trades” that do

not fall within the police power.

Judge Earl says, at page 114:

Under the guise of promoting the public health

the Legislature might as well have banished cigar-

making from all the cities of the State, or confined

it to a single City or Town, or have placed under a

similar ban the trade of a baker, of a tailor, of a

shoe maker, of a wood carver, or of any other of the

innocuous trades carried on by artisans in their

own homes. The power would have been the same,

—

28

and its exercise, so far as it concerns fundamental,

constitutional rights, could have been justified by

the same arguments. Such legislation may invade

one class of rights today and another tomorrow,

and if it can be sanctioned under the Constitution,

while far removed in time we will not be far away

in practical statesmanship from those ages when

governmental prefects supervised the building of

houses, the rearing of cattle, the sowing of seed and

the reaping of grain, and governmental ordinances

regulated the movements and labor of artisans, the

rate of wages, the price of food, the diet and cloth-

ing of the peop e, and a large range of other affairs

long since in ai civilized lands regarded as outside

of governmental functions. Such governmental in-

terferences disturb the normal adjustments of the

social fabric, and usually derange the delicate and

complicated machinery of industry and cause a

score of ills while attempting the removal of one.”

The Court further says, “When a health law is

challenged in the Courts as unconstitutional on the

ground that it arbitrarily interferes with personal

liberty and private property without due process of

law, the Courts must be able to see that it has at

least in fact some relation to the public health, that

the public health is the end actually aimed at, and

that it is appropriate and adapted to that end.”

People vs. Marx (99 N. Y. 377) arose under an

act prohibiting the manufacture or sale of substi-

tutes for butter or cheese. It was unanimously held

unconstitutional because not limited to unwhole-

some or simulated substances. Judge Rapallo says,

at page 387:

“Equal rights to all are what are intended to be

secured by the establishment of constitutional

limits to legislative power, and impartial tribunals

to enforce them.”

29

In the case of People vs. Gillson (109 N. X. 389)

an act prohibiting the sale of any article of food

upon the inducement that something would be given

to the purchaser as a premium or reward (Laws

1887, ch. 691) was held to be an unauthorized in-

vasion of the rights of property and an improper

exercise of the police power of the State. It was

expressly declared in that case that the courts must

be able to see upon a perusal of the enactment that

there is some fair, just and reasonable connection

between it and the public good, and that unless

such relation exists the statute cannot be upheld

as an exercise of the police power.

Judge Peckham, writing the opinion of the

court in the Gillson case, says, at page 398:

“At the same time it must be remembered that

the Constitution is the supreme law of the land,

and that when an act of the Legislature properly

comes before the court to be compared by it with the

fundamental law, it is the duty of the court to de

clare the invalidity of the act if it violates any pro-

vision of that law.”

Again, on page 399, he says:

“Liberty, in its broad sense, as understood in this

country, means the right, not only of freedom from

servitude, imprisonment or restraint, but the right

of one to use 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 * *

“It is quite clear that some or all of these funda-

mental and valuable rights are invaded, weakened,

limited or destroyed by the legislation under con-

sideration. It is evidently of that kind which has

been so frequent of late, a kind which is meant to

protect some class in the community against the

30

fair, free and full competition of some other class,

the members of the former class thinking it impos-

sible to hold their own against such competition,

and therefore ‘flying to the Legislature to secure

some enactment which shall operate favorably to

them or unfavorably to their competitors in the

commercial, agricultural, manufacturing or pro-

ducing fields.”

On page 400, he says:

“This brings us to the consideration of the ques-

tion whether the act is valid as a proper exercise of

what is, by way of classifification, called the police

power of the State. That power has never yet been

fully described nor its extent plainly limited, fur-

ther at least, than this; it is not above the Consti-

tution, but it is bounded by its provisions, and if

any liberty or franchise is expressly protected by

any constitutional provision it cannot be destroyed

by any valid exercise by the Legislature or the ex-

ecutive of the police power.”

Again on page 403, he says:

“It is further argued, however, that the act is

valid as a health law, a regulation of trade in food,

and to prevent dealing in impure, unwholesome and

adulterated food. The same principles apply here

as have already been stated, i. e., there must be

some fair and reasonable relation of means to end,

which courts can see and admit the force of. We

think it clear there is no such relation here. We

think the act has not the slightest tendency to ac-

complish the alleged purpose.”

In the case of People vs. Biesecker (169 N. Y. 53)

a statute forbidding the use of preservatives in

dairy products was held void. Judge Cullen says at

page 60, “while it may regulate, it may not destroy

the industry.”

31

In declaring unconstitutional Chapter 931 of the.

Laws of 1896, which required all convict made.

goods to be labeled “convict made” before they

could be exposed for sale and which act was sought

to be sustained under the police power as a measure.

for the public welfare, Judge O’Brien writing the

majority opinion, gives expression to these prin-

ciples.

“A law which interferes with property by depriv-

ing the owner of the profitable and free use of it or

hampers him in the application of it for purposes of

trade or commerce, or imposes conditions upon the

right to hold or sell it, may seriously impair its

value against which the constitution is a protection.

The fact that legislation hostile to the rights of

property assumes the guise of a health law or a

labor law will not save it from judicial scrutiny

since the courts cannot permit that to be done by

indirection which can not be done directly. People

vs. Hawkins, 157 N. Y. 1.

The last case decided in New York which is di-

rectly in point is People vs. Beattie (96 App. Div.

383) decided in July, 1904. It arose under an act

providing for the examination and licensing of

horseshoers. The court declared it unconstitutional

as an improper exercise of the police power. Judge

Hatch writing the opinion of the Court, says at

page 390:

“To undertake the regulation of these subjects

would inject into the body politic a paternalism

which is repugnant to free institutions.”

And again at page 3991:

“We are of opinion, therefore, that this law ar-

bitrarily interferes with personal liberty and pri-

vate property without due process of law, for which.

reason it is invalid.”

32

The following decisions of the New York Court

of Appeals interpreting the “Labor Law” of that

State are not directly in point, but are important

expressions of the views of that court on some

branches of the case at bar.

The earliest case under the Labor Law which

came before the New York Courts was that of

People ex rel. Rodgers vs. Coler (166 N. X. 1).

That was an application by a contractor with the

city to compel the payment of his claim. It was

resisted on the ground that the contractor had

failed to comply with the Labor Law so far as it

required payment by him to his employees of the

prevailing rate of wages. It was held that the

Labor Law, so far as it required that in contracts

with the municipality the contractor should agree

to pay his employees the prevailing rate of wages,

was unconstitutional and void, and that the con-

tractor was entitled to payment, though he had

failed to comply with that provision.

People vs. Orange County Road Construction

Company (175 N. Y. 84), was a case arising under

the Penal Code which made any one contracting

with the state or a municipality who should require

more than eight hours work of an employee guilty

of a misdemeanor and punishable by a fine. As is

pointed out in the opinion rendered in the case the

statute did not assume to punish a contractor for

violating his contract but for doing the prohibited

act, i. e., requiring more than eight hours labor

from an employee, regardless of whether or not he

had agreed by his contract not to require such a

term of labor and even though his contract might

have been made years before there was any legisla-

tion on the subject. It was held that this penal

enactment could not be sustained as a police or

health regulation because of the arbitrary distine-

33

tion drawn between workmen employed on a state

or municipal work and those performing similar

labor under other contracts.

Ryan vs. City of New York (177 N. Y. 271),

arose under the Labor Law, the plaintiff, an em-

ployee of the city, suing for the difference between

the wages actually paid him by the city and the

prevailing rate of such wages. It was there held

by a majority of the court that the direction of the

Labor Law that the city should pay its employees

the prevailing rate of wages was constitutional and

imposed upon the city officers the duty of fixing

wages at the prevailing rate, but that the acceptance

by the employee of a different rate and his contin-

uance in the employment of the city at such rate

constituted a waiver of all claim on his part for

greater compensation.

The last “Labor Law” decision in New York was

People ex rel Cossey vs. Grout (179 N. Y. 417).

This was a case where the relator agreed in his

contract with the city not to employ his men more

than eight hours per day. The relator prevailed on

the ground that the law was an unconstitutional

invasion of the rights of the municipality. We cite

the case for the purpose of calling attention to the

statement of Judge O’Brien at page 434, where he

shows the ground of dissent of three judges of that

court in the Lochner case. It is quite true that this

court has recently held that the legislature could

make it a criminal offense for a baker to permit his

workmen to work more than ten hours in the day,

but the struggle in that case was to make what some

of us thought was a labor law a health law and so

within the police power.”

No case yet decided by the Supreme Court of the

United States would warrant the affirming of the

decision of the New York Court of Appeals in this

34

case. We have elsewhere pointed out that Holden

vs. Hardy (169 U. S. 366) was clearly distinguish-

able from this case. The occupation of mining has

ever been held: properly within the police powers;

while a decision pronouncing the bakers trade sub-

jeet to arbitrary regulation under the police power,

would mean that all trades will eventually be held:

within the police power; and the 14th Amendment

will become mere idle words. We feel confident of

this.as we show by the tables in the “Appendix” of

this brief, that the baker’s trade is about on the

general average of healthfulness of all trades.

We cite briefly some of the leading cases decided

by this Court.

In Butcher's Union Company against Crescent

City Company (111 U. 8. 746), Mr. Justice Field

says, on page 757 : “Among the inalienable rights as.

proclaimed in the Declaration of Independence is

the right of men to pursue their happiness, by

which is meant the right to pursue any lawful busi-

ness or vocation, in any manner not inconsistent

with the equal rights of others, which may increase

their prosperity or develop their faculties, so as to

give them their highest enjoyment. The common.

business and calling of life, the ordinary trades

and pursuits, which are innocuous in themselves

and have been followd in all communities from

time immemorial, must, therefore, be free in this.

country to all alike upon the same conditions. The

right te pursue them, without let or hindrance, ex-

cept that which is applied to all persons of the

same age, sex, and condition, is a distinguishing

privilege of citizens of the United States, and an

essential element of that freedom which they claim

as their birthright.”

The case of Munn vs. Illinois (94 U. S. 79) is not

35

an authority for the act of the New York legisla-

ture here complained of. In that case it was held

that an occupation whose regulation was necessary

“for the public good” was within the police power;

but as Mr. Justice Field points out, it must be a

case where one undertakes “a public employment,

with special privileges which the State alone can

confer upon him,” and the warehousing of grain

having become a “virtual monopoly” gave the busi-

ness a public character that. warranted its regula-

tion.

The words of Chief Justice Chase in the case of

Calder vs. Bull (3 Dallas 386, 388), have never been

questioned by this court and are still authority for

our contention in this case that the legislature is

not omnipotent. He says:

“I cannot subscribe to the omnipotence of the

State Legislature, or that it is absolute and without

control; although its authority should not be ex-

pressly restrained by the constitution or funda-

mental law of the state. * * * The nature and

ends of legislative power will limit the exercise of

it. This fundamental principle flows from the very

nature of our free republican governments, that no

man should be compelled to do what the laws do not

require; nor to refrain from acts which the law

permit. There are acts which the federal or state

legislature cannot do without exceeding their

authority. There are certain vital principles in our

free repulican governments, which will determine

and overrule an apparent and flagrant abuse of leg-

islative power; as to authorize manifest injustice by

positive law; or to take away that security for per-

sonal liberty or private property, for the protection

whereof government was established. * * * A

few instances will suffice to explain what I mean.

A law. that punished a citizen for an innocent. ac-

36

tion, or, in other words, for an act, which when

done, was in violation of no existing law; a law

which destroys or impairs the lawful private con-

tracts of citizens; a law that makes a man a judge

in his own cause; or a law that takes property from

A and gives it to B; it is against all reason and jus-

tice for a people to entrust a legislature with such

powers; and therefore it cannot be presumed that

they have done it. * It (the legislature)

cannot change innocence into guilt, or punish in-

nocence as a crime, or violate the right of anteced-

ent lawful private contract; or the right of private

property.”

In United States vs. Martin (94 U. S. 400, 403),

this court construed Section 3738 of the Revised

Statutes, providing that eight hours shall constitute

a day’s work for employes of the Government. It

was there held that this statute was “in the nature

of a direction from a principal to his agent; that

eight hours is deemed to be a proper length of time

for a day’s labor, and that his contracts shall be

based upon that theory. It is a matter between the

principal and his agent, in which a third party has

no interest.” (p. 404.)

The court also says:

“It does not establish the price to be paid for a

day’s work. Skilled.labor necessarily commands a

higher price than mere manual labor, and whether

wages are high or low depends chiefly upon the in-

quiry whether those having labor to bestow are

more numerous than those who desire the service of

the laborer. * * *

“The statute does not provide that the employ

und the laborer may not agree with each other as to

what time shall constitute a day’s work. There are

some branches of labor connected with furnaces,

foundries, steam or gas works, where the labor and

37

the exposure of eight hours a day would soon ex-

haust the strength of a laborer and render him

permanently an invalid. The government officer is

not prohibited from knowing these facts, nor from

agreeing, when it is proper, that a less number of

hours than eight shall be accepted as a day’s work.

Nor does the statute intend that, where out-of-door

labor in the long days of summer may be offered for

twelve hours at an uniform price, the officer may

not so contract with a consenting laborer.”

This decision clearly puts this court on record, as

against the arbitrary regulation of innocuous

trades by act of the Legislature.

The case of United States against Martin is simi-

lar in principle to People vs. Phyfe (136 N. Y. 554).

In the case of Henderson vs. Mayor of New York

(92 U. S. 259), a State law regulating the landing

of passengers was held unconstitutional and not

within the police powers.

The case of Petit vs. Minnesota (177 U. S. 164),

is also distinguishable from the case at bar. A

Sunday law which in effect made the determination

whether a given occupation was an act of charity or

necessity a question of fact in all trades, except

barbers. Sunday laws have universally been held

within the police powers. This statute is a declara-

tion that the barber's trade does not involve work

of necessity or charity.

We regard the decision of this Court in the case

of Atkin vs. Kansas (191 U. S. 207, 224), as favor-

able to our contentions in the case at bar. The

statute there under review regulated the hours of

labor on public works. It did not interfere with

the right of private contract. Mr. Justice Harlan

calls attention to this and says “Its action touching

such a matter is final so long as it does not, by its

—

38

regulations, infringe the personal rights of others,

and that has not been done.”

Wynehamer vs. People (13 N. Y. 378); In re

Jacobs (98 N. Y. 98); People vs. Marx (99 N. Y.

377); People vs. Gillson (109 N. Y. 401); People

vs. Budd (117 N. Y. 15); Health Dept. vs. Rector

(145 N. Y. 32); Colon vs. Lisk (153 N. Y. 188)

People vs. Hawkins (157 N. Y. 1); People ex rel.

Tyroler vs. Warden of Prison (157 N. Y. 116) ; Peo-

ple ex rel. Rodgers vs. Coler (166 N. X. 1); People

vs. Biesecker (169 N. Y. 53) ; People vs. Orange Co.

Road Cons. Co. (175 N. Y. 84); Ryan vs. City of

New York (177 N. Y. 271); People ex rel. Cossey

vs. Grout (179 N. Y. 417); Calder vs. Bull (3 Dal-

las 386): Slaughter House Cases (16 Wall. 36);

Henderson vs. Mayor of New York (92 U. S. 259);

Munn vs. Illinois (94 U. S. 79); Missouri vs. Lewis

(101 U. S. 22); Butchers’ Union Co. vs. Crescent

City Co. (III. U. S. 746); Barbier vs. Connolly (113

U. S. 27); Holden vs. Hardy (169 U. S. 366) : Pettit

vs. Minnesota (177 U. S. 164); Connolly vs. Union

Sewer Pipe Co. (184 U. S. 540); Atkin ve. Kansis

(191 U. S. 207); Cook vs. County of Marshall (De

cided by this Court January 16, 1905).

In the other State Courts legislation of the kind

in issue has been almost uniformly declared invalid.

Sawyer vs. Davis (136 Mass. 239, 243) ; Eden vs.

People (161 III. 296); Ritchie vs. People (155 III.

98); Ex parte Kuback (85 Cal. 274); Godcharles

vs. Wigeman (113 Penn St. 431); State vs. Good-

will (33 West. Va. 179); Leep vs. St. Louis R. R.

Co. (58 Ark. 407); Low vs. Rees Pub. Co. (41 Neb.

127) ; Exparte Westerfield (55 Cal. 550).

The latter case is directly in point and pronoun-

ces the bakers’ trade not one subject to the police

power of the state.

39

In the Westerfield case, a California statute pro-

vides: “It shall be unlawful for any person en-

gaged in the business of baking, to engage or permit

others in his employ to engage in the labor of bak-

ing for the purpose of sale, between the hours of six

o’clock p. m. on Saturday and six o’clock p. m. on

Sunday, except in the setting of sponge preparatory

to the night’s work; provided, however, that

restaurants, hotels and boarding houses may do

such baking as is necessary for their own consump-

tion”; the act is made a thisdemeanor ,punishable

by fine and imprisonment, or both. Held void as a

special law. Myrick, J.: “The act purports, accord-

ing to its title, to be an act to provide for a day of

rest. Instead of pursuing that intent, it goes on to

say that certain acts, viz., the labor of baking for

the purpose of sale, if performed by certain persons,

viz., persons ‘engaged in the business of baking for

the purpose of sale’ shall constitute a crime and

sliall be punished. The employers are not to be

punished. This is special legislation. A certain

class is selected. * * * The baking of bread is in

itself lawful and necessary.” McKinstry, J., con-

curring: “The baking of bread is not only lawful

and necessary, but we will take notice that there is

nothing so peculiar in the occupation as that those

engaged in it require—as a sanitary measure, or for

the protection of their morals----a period of rest not

required by those engaged in many other employ-

ments. A general law must include within its sanc-

tion all who come within its purpose and scope. It

must be as broad as its object.”

From all of the decisions on the exercise of the

police power we find its exercise fairly tested by ‘the

questions set forth in Section 143 of Freund on

Police Power.

“The questions which present themselves in the

40

examination of a safety or health measure are:

Does a danger exist? Is it of sufficient magnitude?

Does it concern the public? Does the proposed

measure tend to remove it? Is the restraint or re-

quirement in proportion to the danger? Is it pos-

sible to secure the object sought without impairing

essential rights and principles? Does the choice of

a particular measure show that some other interest

than safety or health was the actual motive of leg-

islation?“

Tested by these questions we believe the consti-

tutionality of the case at bar cannot be maintained.

4. The statute in question was never intended .as

a health provision but was purely a labor law.

This is indicated by the facts leading up to the

adoption of this statute by the New York legis-

lature.

The classic country of modern factory legisla-

tion, England, brought forward the first law regu-

lative of conditions of bakeshops, that we are able

to discover, to wit, the “Bakehouse Regulation Act”

passed by Parliament in 1863 (26, 27 Vict. Ch. 40).

This act was the result of an investigation of a

Parliamentary commission. The law forbids per-

sons under the age of eighteen to work between the

hours of 6 p. m. and 5 a. m. and apprentices to

work in excess of 10 hours per day.

In addition thereto it provides for a number of

sanitary rules similar to those of the New York

Labor Law, but it in no wise seeks to interdict the

operation of bakeshops or restrict the hours of

labor of the adult employees. The Factory Act

41

of 1883, designed as “Factory and Workshop Act,

1883” amended the Bakehouse Act of 1863 in sev-

eral particulars in regard to the location and main-

tenance of privies, water closets, sewage, drains and

pipes and other strictly sanitary matters, but in

no wise sought to interfere with the hours of labor

of employees.

As our factory legislation in America was large-

ly borrowed from that of England, so did the bak-

ery legislation of the several states take its impe-

tus from the precedents established by our cousins

across the sea.

The first demand for a ten hour work day for

bakers in our country, appears to have been made

by resolution adopted in a mass meeting of bakers

of the City of New York, in Irving Hall, on April

23d, in 1887. In the same year a Bill made its ap-

pearance in the New York Legislature promoted

by George G. Block, the Secretary of the Journey-

men’s Bakers Union which read as follows:

Section 1. A day’s work in a bakery, shop

or other place in which articles of food are

mannfactured, shall not exceed ten hours

per day.

Section 2. This act shall take effect im-

mediately.

See Baker’s Journal, New York City, May 8th,

1895. This bill was rejected by the Legislature.

Five years later in 1892, the Commissioner of

Labor Statistics of the State of New York, with the

aid of the Organization of the Journeymen Bakers,

made an investigation of the conditions of labor

and the construction of the bakeshops of New York

City, which resulted in an agitation of the Jour-

neymen Bakers renewing the struggle for a ten

hour law for bakers and a number of sanitary pro-

42

visions which as stated above were largely bor-

rowed from the English Bakehouse Act.

Report of New York State Bureau of Labor Sta-

tistics of 1892, Volume ITT.

In 1895 a Bill was introduced into the Legis-

lature entitled “An Act to regulate the Manufac-

ture of Flour and Meal Food Products.” It be-

came a law as Chapter 548 of the Laws of 1895.

It was the first Baker’s Law passed in any country

of the world, which arbitrarily fixed the hours of

labor of adult employees of bakeries and confec-

tionery establishments, without providing for ex-

ceptions in emergency cases. In 1896 another bill

was introduced adding certain sanitary amend-

ments to the new law, such as providing for a min-

imum height of eight feet for all bakeshops and

prohibiting domestic animals to be kept in bak-

eries. The Act which became known as Chapter

672 of the Laws of 1896 is substantially the pres-

ent Article VIII. of the Labor Law. In 1897 the

Legislature was engaged in consolidating into a

series of general laws the Laws of the State and

among others embodied all of the former indepen-

dent acts bearing upon and having relation to the

condition of labor and workmen into one act, en-

titled “The Labor Law,” Chapter 32 of the General

Laws. It was then that the question of the classi-

fication of the Bakery Inspection Law first pre

sented itself to the Legislature and the latter al-

though at the same time collating the laws rela-

tive to the public health under an act called the

“Public Health Act,“ which was adopted the same

year, placed the Bakery Act into the Labor Law.

The legislature thus determined that this act

was a labor measure and that its passage was so

intended and in conformity thereto inserted it in

43

the Labor Law, as Article VIII. thereof and not

in the Public Health law.

This act is the most arbitrary of its kind on the

‘statute books of this country. It prohibits abso-

lutely the employment of employees in baking and

confectionery establishments over the prescribed

limit of 60 hours a week without regard to loss of

property or other emergencies that may arise, the

desire of employes to contract for overtime, or the

employer's willingness to pay for extra work in

‘cases of emergency.

The Utah Miner’ 8 Hour Law sustained by this

Court in Holden vs. Hardy, 169 U. S. is clearly

‘distinguishable i in this respect from the act in ques-

tion since it provides for an exception “in cases of

emergency where life or property is in imminent

danger,” as well as in the fact that mining is not

classed with the baking trade as innocuous.

The Acts of New York State of a similar nature

are the act providing that ten hours within twelve

consecutive hours should constitute a day’s work

‘on certain railroads. Overtime is here permitted

in case of accident or unavoidable delay. Laws of

1897 Ch. 415, Section 5

The New York Law relative to work in brick

yards, forbidding employers to allow the men to

work more than 10 hours per day, allows overtime

agreements.

Outside of New York, most of these special Laws

applying to adult labor concern railways or mines.

Three other states followed New York in regulat-

ing the working time of men employed in bakeries,

New Jersey, Pennsylvania and Missouri; as did

also Ontario, Can.

The New Jersey Act was passed in April, 1896,

and is almost an exact copy of the act here in is-

44

sue. The introducers of the act sought to enact

the statute in the same form as the New York Act

but the Legislature amended the ten hour work

day provision, permitting employers in cases of

emergency to employ the men two additional hours

provided they receive extra remuneration for such

extra time at the regular wage rate paid such em-

ployees.

An Act respecting Bakeshops, assented to April

7, 1896, is the title of a similar measure of the

Province of Ontario. Section 7 thereof reads as

follows: No employer shall require, permit or suf-

fer any employee in any bakeshop to work more

than sixty hours in any one week except by per-

mission of the inspector given in writing to the

employer.

It has already been remarked that the English

Bakehouse Act has no restrictions as to the hours

of labor of adults; nor do we find any such restric-

tions in the Bakery Inspection Laws ef Connecti-

cut, Massachusetts and Maryland passed in 1896

and 1897, and in the Act of Minnesota passed in

1895. The restrictions in the Acts of Pennsyl-

vania and Missouri of 1897 apply to Sunday labor

only.

Other laws regulative of the hours of labor may

be distinguished from the act as respecting the

freedom of contract in every State of the Union.

While providing for a legal workday and for strict

prohibitions against working over the legal limit

they invariably either grant the parties to the labor

contract the right to agree otherwise, to accept or

pay extra compensation for over work, for extra

work in cases of emergency, or of danger to life or

property or for extra work to make up for lost

time. We have failed to find an instance where

an employer is so utterly helpless to protect his

5. Holden v. Hardy (169 U. S. 366) distinguished

from the case at bar.

Working in underground mines has always been

recognized as hazardous and unhealthful. The bak-

ers trade has not. We have a specific reference to

the bakers trade as an “innocuous” one in the opin-

ion of Judge Earl in the Jacobs case, (98 N. Y. at

page 114). And a similar declaration by the highest

Court of California in re Westerfield (55 Cal. 550).

The Utah miners act was passed pursuant to a

provision of the State constitution which provided

as follows “the legislature shall pass laws to pro-

vide for the health and safety of employes in fac-

tories, smelters and mines” (Const. Art. 16, § 6).

The Utah Legislature pursuant to this provision

enacted a law which was certainly intended as a

health regulation.

The New York Statute is contained in “The

Labor Law” of the State and is purely a regulation

of the hours of a trade which under present day con-

ditions is not unhealthful. The additional pro-

visions relating to the sanitary surroundings of the

bake shop amply protect the baker against unsani-

tary conditons. Such protection is impossible to

the miner.

The Utah law applies to “workingmen in all un-

derground mines and workings.” The New York

—

be

46

law affects only employes in a “biscuit, bread or

cake bakery.” The law should have applied to all

persons engaged in the business of baking. Such is

the language of the California statute on the same

subject (55 Cal. 550).

The Utah statute excepts “cases of emergency

where life or property is in imminent danger.” The

New York Statute is unreasonable in this respect

and makes no exception. The baker’s business is

peculiarly liable to changes in the time of the ma-

turing of the material and changes of temperature

affect it to the extent of hours. Yet the employer

is a criminal if he compels or permits his employes.

to work over the prescribed time, though they do it

willingly and are paid for overtime, and though

the bakers product is destroyed thereby.

6. The plaintiff in error, believing the New York

statute under review to be unconstitutional prays.

that the judgment of the New York Court of Ap-

peals be reversed.

Respectfully submitted,

Frank Harvey FIs,

HENRY WEISMANN,

of Consul for plaintiff in error.

APPENDIX.

THE LABOR LAW.

CHArr Rn 415, Laws or 1897.

Article VIII.—Bakeries and Confectionery Estab-.

ments.

Section 110. Hours of labor in bakeries and con-

fectionery establishmenta No employee 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 num-

ber of days during such week in which such employe

shall work.

Source.—L. 1895, Ch. 518, Sec. 1, as amended by

L. 1896, ch. 672.

Section 111. Drainage and plumbing of build:

ings and rooms occupied by bakeries—All build-

ings or rooms occupied by bakeries —All buildings

or rooms occcupied as biscuit, bread, pie or cake

bakeries shall be drained and plumbed in a man-

ner conducive to the proper and healthful sanitary

condition thereof, and shall be constructed with air.

shafts, windows or ventilating pipes, sufficient to

insure ventilation. The factory inspector may di-

rect the proper drainage, plumbing and ventilation

of such rooms or buildings. No cellar or basement

not now used for a bakery shall hereafter be so

occupied or used unless the proprietor shall ‘comply.

with the sanitary provisions of this article.

48

Source. L. 1895, Ch. 518, See. 2, as amended by

L. 1896, ch. 672.

Section 112. Requirements as to rooms, furni-

ture, utensils and manufactured products.—Every

room used for the manufacture of flour or meal food

products shall be at least eight feet in height, and

shall have, if deemed necessary by the factory in-

spector, an impermeable floor constructed of

cement, or of tiles laid in cement, or an additional

flooring of wood properly saturated with linseed

oil. The side walls of such rooms shall be plas-

tered or wainscoted. The factory inspector may re-

quire the side walls and ceiling to be whitewashed

at least once in three months. He may also require

the woodwork of such walls to be painted. The

furniture and utensils shall be so arranged as to be

readily cleansed and not prevent the proper clean-

ing of any part of a room. The manufactured flour

or meal food products shall be kept in dry and airy

rooms, so arranged that the floors, shelves and all

other facilities for storing the same can be prop-

erly cleaned. No domestic animals, except cats,

shall be allowed to remain in a room used as a

biscuit, bread, pie or cake bakery, or any room tn

such bakery where flour or meal products are

stored.

Source. L. 1895, Ch. 518, Secs. 3, 4, as amended

by L. 1896, ch. 672.

Section 113. Wash-room and closets; sleeping

places.—Every such bakery shall be provided with

a proper wash-room and water-closet or water-closet

apart from the bake-room or rooms where the manu-

facture of such food product is conducted, and no

water-closet, earth-closet, privy or ash-pit shall be

within or connected directly with the bake room of

any bakery, hotel or public restaurant.

No person shall sleep in a room occupied as a

49

bake-room. Sleeping places for

ployed in the

Source.—L, 1895, Ch. 518, Secs. 5, 6, as amended

by L. 1896, ch. 672.

Section 114.—Inspection of

of

red by him

premises, either

50

.

ee. who violates, or does not comply with

„the provisions of Article Eight of the Labor

Law, relating to bakeries and confectionery estab-

lishmenta, the employment of labor and the manv-

facture. of flour or meal food products therein

js guilty of a misdemeanor and upon con-

viction shall be punished for a first offense by a fine

of not less than twenty nor more than one hundred

dollars; for a second offense by a fine of not less

than fifty nor more than two hundred dollars, or

by imprisonment for not more than thirty days, or

by both such fine and imprisonment; for a third

offense by a fine of not less than two hundred and

fifty dollars, or by imprisonment for not more than

sixty days, or by both such fine and imprisonment.

From Buck’s Hygiene and Public Health, 1879,

Volume II., Pages 10-11:

L

OCCUPATIONS INVOLVING THE INTRODUCTION or

DELETERIOUS MATTERS INTO THE BODY.

1. By Inhalation.

A. Vapors and Gases:

. Irritating—Metal-refiners, gold and silver

mmiths, jewelers, electrotypers, etchers,

- bleachers, straw-hat makers, manufacturers

of chemicals...

b. 88 gilders, eee

brass founders, mateh- makers, rubber manu;

facturers, smelters, manufacturers of ani-

line, photographers, cloth-scourers.

51

oil-pressers, cheese makers, scavengers, su-

gar-refiners, fullers, hostlers, .

rag-pickers.

B. Dust:

a Irritating—Metallic: Bronzers, file cutters,

fitters, grinders, needle-makers, pin-pointers,

cutlers. Mineral: Cement-makers, stone-cut-

ters, potters, lime burners, plaster-burners,

glass-cutters, sandblast operatives, diamond-

cutters, lithographers. Vegetable: Chimney-

sweeps, molders, millers, cotton, flax and

hemp operatives, tobacco operatives. A.

mal: Brush-makers, button-makers, feather,

wool and silk operatives. Miwed: Carpet-

cleaners, hair-pickers, street-sweepers.

b. Poisonous—Artificial- flower makers, Wall-

2. Poisonous: Paederasts, prostitutes.

52

II.

OOCUPATIONS INVOLVING EXPOSURE TO CONDITIONS

THAT INTERFERE WITH NUTRITION.

1. Elevated or Variable Temperature.

a. Vicissitudes of weather—Boatmen, fishermen,

farmers, (florists, gardeners, nurserymen),

drivers (cartmen, hackmen, omnibus driv-

ers), laborers, bricklayers, masons.

b. Artificial heat—Brick-makers, bakers, cooks,

charcoal-burners, blacksmiths, engineers,

stokers,. forgemen, iron-puddlers, glass-blow-

. Nervous system (mental worry)—Brokers,

.. . gamblers, merchants, physicians, tea-tasters. —

d Byee-—Engravers, lapidaries

-seamstresses: (embroiderers, lace makers).

e. Vocal Organs Actors, clergymen, singers, pub

lie speakers.

d. Muscles—Athletes, copyists, musicians, (pian-

ists, violinists, bras»instrument players).

3. Gonstrained Attitude.

‘Printers (compositors, pressmen), coopers, car

penters, cabinet-makers, shoe-makers, tail-

ors, sales men and women.

4. Sedentary Life.

Artists, clerks, lawyers, literary men, students,

teachers.

53

III.

OCCUPATIONS INVOLVING EXPOSURE TO MBOHANIGAL

VIOLENCE.

1. From machinery: Factory operatives, machin-

ists, railway employees.

2. From preventable accidents: Lumbermen,

quarrymen, roofers.

3. From variations in atmospheric pressure:

Aeronauts, caisson workers, drivers, boiler-

makers.

OCCUPATIONS WITH HIGHEST AND Lowest MorTAL-

ITY FiguRES IN ENGLAND, 1890-2.

(Supplement to 55th Annual Report of the Regis-

trar-General. )

Comparative

Occupation mortality figure.

CC erry rep yr fee rire 1,829

TTT Ä Stks, Cieeieeeebe 1,810

JJ. 8 1,783

1 . ᷣ ò ò ᷣ ò»bc!lnn .. 1,725

Potter, earthenware manufacturer 1,706

Innkeeper, servant, eta 1,659

Costermonger, hawker. ......:.... ies kas 1,652

TE sarin cae esdwen n6e Oc Kap eeSA 1,642

Coal heaver..... JJC 3;

Cutler, scissors maker 1,516

General laborer (industrial districts).. 1,500

Glass manufacture a EE 1,487

TR 5 5 6 5 cE Role Soiss CSS feo i 1,427

General laborer (London)) 1,413

Tool, scissors, file, saw, ete., maker. 1,412

%% ᷣͤ ͤ AAA ae dv v oneaeeeneens 1,409

Coal miner (Monmouthshire and South

Wales)

Cotton, etc., manufacture

Occupation. ,

Silk, satin, etc., manufacture

Commercial clerk

Blacksmith, whitesmith

Coal miner (West Riding)

„ „„ „ „%% „% %%% „ „% eee eee „ „

693232525244 „„ „„ „46

ee eee „ „33

eee eee eee eee eee en eee ere eon ee

Coal miner (Durham and Northumber- _

—. . ĩ Oo RRS 774

Ironstone miner . 774

/ cesses sein gehen 768

Domestic indoor serv ant. 757

undd e ⁰àÄ˙ʃ“ ce's pe cceteces 756

„ ie 65's 6 obs dks ow kok Sass 74¹

Coal miner (Derbyshire and .

T.. ͤ ᷣ ᷣͤ VVA 727

c . 713

I 8 709

Hosiery manufacture 698

Laborer in agricultural group 666

ee ß ee G 664

Agricultural laborer 632

Se . ͤͤœ- Gmßʒ eee 604

%% 0 se os iev ive 602

pe” Bee PeeET epee Pr, Flr 563

r . eve As 553

, ss Ved eke yen 5 533

Nore.—Occupations in the first column have a

mortality above and those in the second column be- .

low the average for all occupied males (953)...

Among the 48 other occupational groups 39 are

above and 9 below this figure. The standard of

56

(1,000) is the mortality figure for all

77 4 —*

Indented lines indicate sub- classes or occupa-

The number of deaths of male persons between 25

aiid 65 years of age in the years 1890, 1891 and 1892

is compared with the number of living persons exer-

cising the various occupations as returned by the-

census of 1891. The mortality of ali males within

the age period 25-65 years is then taken as a stand-

ard (1,000) with which the death rate in the

various occupations is compared. The unoccupied

males had a death rate more than twice as large

as that of all males, the exact ratio being as 2,215

to 1,000, while the oceupied males of course had a

lower mortality, thus:

All males (standard)

Unoceupied males

Occupied males—England

Occupied males—London

Occupied males Industrial dis-

, WHERE BREAD 18 MavE.—By F. J. Waldo, M. A.,

M. D.; from article in Journal of the Sanitary In-

stitute, April, 1894 (England), dealing with bakers

and bake-houses and closing with thirteen recom-

mendations of sanitary changes in the shops of

London. He concludes the article by saying “if bak-

ing be carried on in well ventilated places, with a

perfect sanitary environment, there is no reason

why it should be a particularly dangerous or un-

healthy trade.”

57

BAKESHOP SANITATION AND THE REDUC

TION OF THE WORKTIME OF BAKERS.

The claim that the reduction of the hours of”

labor of bakers is an element in bake-shop sanita-

tion and in the promotion of the health of bakers

and the wholesomeness of their products, is not

sustained by medical and sanitary authority, and

we fail to find an instance in which those who have:

given thought and labor to this question, have in

any wise adverted to it.

The following references and opinions are not-

able in this connection.

The Lancet, Vol. 2, 1895, page 298, contains a

joint paper of Dr. F. J. Waldo and Dr. David

Walsh, two English sanitary experts of note, deal-

ing with underground industries, especially with

reference to the baking trade in London. They state:

that the underground rooms are ‘unfit for workmen.

The only way in which they can be made fit to

work in is to have them at least eight feet high and

a minimum of 500 cubic feet of air space for each

workman, and a special allowance for each gas

jet. Walls must be kept smooth and dry. Win-

dow space must equal one eighth of the floor and

ventilation, light, drainage and lavatory accommo-

dations must be such as to satisfy advanced modern

requirements, floors should have nine-inch concrete:

and drains should be a foot deep laid in concrete.

There should be a front area outside and a back or

side area to promote the circulation of air.

The recommendations of these men do in no wise

refer to the reduction of the hours of labor of the

employees. Report of Lancet, Special Sanitary

‘Commission on Bakeries and Bread Making, 1889,

Vol. 2, page 1140, treating of the unsanitary con-

ditions of bakeries and poor ventilation. It states

on Bakeries and Bread Making,.1890, Vol. 1, Page

c

application of sanitary laws.

No. 3, Page 208, same book, treating of ventila-

tion and proper sanitation as followed in Belgium

and France.

No, 4, Page 719, same volume, condemns poor

sanitary and ventilating conditions in Scotland,

states there are very few model bakeries in Scot-

land, most of the bakeries being under the ground.

Comparativ Mortality of men 25 to 65 years of

age in different occupations—Referencee handbook

of Medical Sciences,Vol. 6, page 317, mortality of

clergymen being lowest, 100 out of a list of 21 oc-

cupations, the highest being cotton workers at 196.

Bakers are number 11 on the list at 172, above the

bakers are scheduled cabinet makers 173, masons

and brick layers 174, blacksmiths 175, clerks 170,

railway laborers 185, gunsmiths 186, wool workers

180, tailors 199, hatters 191, and cotton workers as

above stated. Millers have a higher death list than

bakers, see page 325.

On page 317 is shown that the mortality from

phthisis is far more frequent in many other trades

than among bakers.

The “Practitioner,” Vol. 53, 1894, pages 387,

389, 390, and up to page 400, treats of unsanitary

conditions and poor ventilation of bakers and advo-

cates reforms in that direction, but does not allude

to the hours of labor.

Dr. Arlidge in his work entitled “The Diseases

of Occupations” enumerates" the unhealthy infin. sy

ences to which the baker is exposed, as follows: —

Frrposure 0 heat from ovens, dust storm, varia

supplement to the 45th Annual Report of the Reg-

ister General.

The calculations were made from deaths regis-

tered during 1880-1881, 82, that is to say, prior to

Regulation

The comparative mortality figures of the

and confectioners stands at 938, and it

noted that while he compares unfavorably

grocer and with the shop keepers as a

compares favorably with the cheesemongers,

or butter man, the green-grocer and fruiterer,

fish monger and the poulterer and the

He states on page 396 that statistics

the mortality from phthisis and from diseases

!

:

;

te

1

MONARY DISEASES TO ANY OONSIDER-

ABLE EXTENT.

Our attention has been called to the fact that the

bakers are in their majority night workers, that but

a minority of them marry and lead a domestic life;

7 pr 9 say 8 as 0 ;

contribute largely to the debilitation and unhealth-

kan condition of the men, where ‘such condition may

eee e as these and life

in these surroundings will render an extensive lei-

sure of the employes more dangerous to their health

in both a physical and moral sense, than corre-

spondingly long hours of work in bake-shops prop-

erly conducted under the sanitary rules provided

for by the provisions of the bakery inspection laws.

Professor Oliver, M. A., M. D., F. R. C. P.,

who is the medical expert of the White

Lead, Dangerous Trades, Pottery and Lucifer

Match Committees of the British Home Of-

fice, strongly supports this opinion. In statistics

showing “the comparative mortality from specified

causes in certain dusty occupations,” he shows that

the mortality among bakers stands eighteenth in a

mortality list covering twenty-two such occupa-

tions, being exceeded by the mortality in such

trades as Locksmith, Tinsmith, Bricklayer, Stone-

cutter, Cooper and Wood Turner, and various

trades involving the handling of iron, steel, brass,

copper and zinc, as well as the textile trades. More-

over, Prof. Oliver shows that the mortality among

bakers from phthisis and diseases of the respiratory

system is the lowest of all the twenty-two occupa-

tions he cites, which occupations cover nearly all

the groups in which artisans are employed.

It is therefore plain that the occupation of a

baker is not in itself as harmful as many trades for

which no special legislation has been enacted.

The occupation not being inherently harmful, it

shops, with resultant injustice not only to the opera-

tives, but to the consumers of bakery products.