Opinion — Lochner v. New York

Supreme Court of the United States,

No. 292.—Ocroner Term, 1904,

Oneida County, State of New

York.

Joseph Lochner Plaintiff in Error, \ error to the County Court of

va,

The People of the State of New York.

[April 17, 1905.)

This is a writ of error to the County Court of Oneida County, in the

State of New York, (to which court the record had been remitted,) to re-

view the judgment of the Court of Appeals of that State, affirming the

judgment of the Supreme Court, which itself affirmed the judgment of

the County Court, convicting the defendant of a misdemeanor on an indiet-

ment under a statute of that State, known, by its short title, as the labor

law, The section of the statute under which the indictment was found is

section 110, and is reproduced in the margin,* (together with the other

sections of the labor law upon the subject of bakeries, being sections 111 to

115, both inclusive.)

The indictment averred that the defendant “ wrongfully and unlawfully

required and permitted an employee working for him in his biscuit, bread

*"2110, Hours of labor in bakeries and confectionery establishments.—No employee

shall be required or permitted to work in a biseuit, bread or cake bakery or con-

fectionery establishment more than sixty hours in any one week, or more than ten

hours in any one day, unless for the purpose of making a shorter work day on the

last day of the week; nor more hours in any one week than will make an average

of ten hours per day for the number of days during such week in which sueh em-

ployee shall work,

*€111, Drainage and plumbing of buildings and rooms occupied by bakeries,—A\\

buildings or rooms occupied as biscuit, bread, pie or cake bakeries, shall be drained

and plumbed in a manner conducive to the proper and healthful sanitary condition

thereof, and shall be constructed with air shafts, windows or ventilating pipes, suf-

ficient to insure ventilation, The factory inspector may direct the proper drain-

age, plumbing and ventilation of such rooms or buildings. No cellar or basement,

not now used for « bakery, shall hereafter be 80 occupied or used, unless the pro-

prietor shall comply with the sanitary provisions of this article,

”@112. Requirements as to rooms, furniture, 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

2 Lochner vs. State of New York.

and cake bakery and confectionery establishment, at the city of Utica, in

this county, to work more than sixty hours in one week,” after having been

theretofore consicted of a violation of the same act; and therefore, as

averred, he committed the crime of misdemeanor, second offence, The

plaintiff in error demurred to the indictment on several grounds, one of

which was that the facts stated did not constitute a crime, The demurrer

was overruled, and the plaintiff in error having refused to plead fur-

ther,a plea of not guilty was entered by order of the court and the trial

commenced, and he was convicted of misdemeanor, second offence, as in-

dicted, and sentenced to pay a fine of 850 and to stand committed until

paid, not to exceed fifty days in the Oneida County jail. A certificate of

reasonable doubt was granted by the county judge of Oneida County,

whereon an appeal was taken to the Appellate Division of the Supreme

Court, Fourth Department, where the judgment of conviction was affirmed,

an additional flooring of wood properly saturated with linseed oil. Tae side walls

of such rooms shall be plastered or wainacoted, The factory inspector may require

the side walls and ceiling to be whitewashed at least once in three months, He

may also require the wood work of such walls to be painted, The furniture and

utensils shall be so arranged as to be readily cleansed and not prevent the proper

cleaning of any part of the room, The manufactured flour or meal food products

shall be kept in dry and airy rooms, so arranged that the floors, shelves and other

facilities for storing the same can be properly cleaned. No domestic animals, ex-

cept cats, shall be allowed to remain in a room used as @ biscuit, bread, pie or cake

bakery or any room in such bakery where flour or meal products are stored.

“€113, Wash rooms and closets; sleeping places.—V.very such bakery shall be pro-

vided with a proper wash-room and water-closet or water-closets apart from the

bake-room, or rooms where the manufacture of such food product is conducted,

and no water-closet, earth-closet, privy or ashpit shall be within or connected di-

rectly with the bake-room of any bakery, hotel or public restaurant,

* No person shall sleep in a room ocenpied as a bake-room. Bleeping places for

the persons employed in the bakery shall be separate from the rooms where flour

or meal food products are manufactured or stored, If the sleeping plaves are on

the same floor where such products are manufactured, stored or sold, the factory

inapector may inspect and order them put in » proper sanitary condition.

"¢114. Inspection of bakerivs.—The factory inspeetor shall cause all bakeries to

he inspected, If it be found upon such inspection that the bakeries so inspected

are constructed and conducted in compliance with the provisions of this chapter,

the factory inspector shall issue a certificate to the persons owning or conducting

such bakeries.

"@115, Notice requiring alterations.—Vf, in the opinion of the factory inepector,

alterations are required in or upon premises oecupied and used as bakeries, in

order to comply with the provisions of this article, 4 written notice shall be served

by him upon the ower, agent or lessee of such premises, either personally or by

mail, requiring such alterations to be made within sixty days after such service,

and such alterations shall be made accordingly.”

Lochner vs. State of New York, 3

(13 Applt. Div, 120.) A further appeal was then taken to the Court of

Appeals, where the judgment of conviction was again affirmed, (177

N. Y. 145.)

Mr. Justice Pecknam, after making the foregoing statement of the facts,

delivered the opinion of the Court,

The indictment, it will be seen, charges that the plaintiff in error

violated the one hundred and tenth section of Article 8, Chapter 415, of the

Laws of 1897, known as the Labor Law of the State of New York, in that

he wrongfully and unlawfully required and permitted an employee working

for him to work more than sixty hours in one week. There is nothing in

any of the opinions delivered in this case, either in the Supreme Court or

the Court of Appeals of the State, which construes the section, in using the

word * required,” as referring to any physical force being used to obtain the

labor of an employee, It is assumed that the word means nothing more

ihan the requirement arising from voluntary contract for such labor in excess

of the number of hours specified in the statute. There is no pretence in any

of the opinions that the statute was intended to meet a case of involuntary

labor in any form, All the opinions assume that there is no real distine-

tion, so far as this question is concerned, between the words “ required ” and

* permitted.” The mandate of the statute that “no employee shall be

required or permitted to work,” is the substantial equivalent of an enact-

ment that * no employee shall contract or agree to work,” more than ten

hours per day, and as there is no provision for special emergencies the

statute is mandatory in all cases, It is not an act merely fixing the

number of hours which shall constitute a legal day's work, but an absolute

prohibition upon the employer, permitting, under any circumstances, more

than ten hours work to be done in his establishment, The employee may

desire to earn the extra money, which would arise from his working more

than the prescribed time, but this statute forbids the employer from per-

mitting the employee to earn it.

The statute necessarily interferes with the right of contract between the

employer and employees, concerning the number of hours in whick the

latter may labor in the bakery of the employer, The general right to

make a contract in relation to his business is part of the liberty of the

individual protected by the Fourteenth Amendment of the Federal Con-

stitution. (Aligeyer v, Louisiana, 165 U.S, 578.) Under that provision

no State ean deprive any person of life, liberty or property without due

process of law, The right to purchase or to sell labor is part of the

liberty protected by this amendment, unless there are circumstances which

exclude the right, There are, however, certain powers, existing in the

sovereignty of each Biate in the Union, somewhat vaguely termed police

Lechner vs. State of New York.

the exact description and limitation of which have not been

by the courts, Those powers, broadly stated and without, at

any attempt at a more specific limitation, relate to the safety,

health, morals and general welfare of the public. Both property and

liberty are held on such reasonable conditions as may be imposed by the

governing power of the State in the exercise of those powers, and with

such conditions the Fourteenth Amendment was not designed to interfere.

(Mugler v. Kansas, 123 U, 8. 623; In re Kemmler, 186 1d, 436; Crowley

v. Christensen, 187 Id, 86; In re Converse, 187 Id, 624.)

The State, therefore, has power to prevent the individual from making

certain kinds of contracts, and in regard to them the Federal Constitution

offers no protection. If the contract be one which the State, in the legiti-

mate exercise of its police power, has the right to prohibit, it is not pre-

vented from prohibiting it by the Fourteenth Amendment, Contracts in

violation of a statute, either of the Federal or State Government, or a con-

tract to let one’s property for immoral purposes, or to do any other unlawful

act, could obtain no protection from the Federal Constitution, as coming

under the liberty of person or of free contract, Therefore, when the State,

by its legislature, in the assumed exercise of its police powers, has passed

an act which seriously limits the right to labor or the right of contract in

regard to their means of livelihood between persons who are sui juris, (both

employer and employee,) it becomes of great importance to determine which

shall prevail—the right of the individual to labor for such time as he may

choose, or the right of the State to prevent the individual from laboring

or from entering into any contract to labor, beyond a certain time pre-

scribed by the State.

This court has recognized the existence and upheld the exercise of the

police powers of the States in many cases which might fairly be consid-

ered as border ones, and it has, in the course of ite determination of ques-

tions regarding the asserted invalidity of such statutes, on the ground of

their violation of the rights secured by the Pcderal Constitution, been

guided by rules of a very liberal nature, the application of which has re-

sulted, in numerous instances, in upholding the validity of State statutes

thus assailed. Among the later cases where the State law has been up-

held by this court is that of Holden y. Hardy, (169 U, 8, 366.) A pro-

vision in the act of the legislature of Utah was there under consideration,

the act limiting the employment of workmen in all underground mines or

workings, to eight hours per day, “except in cases of emergency, where

life or property is in imminent danger.” I[t also limited the hours of labor

in smelting and other institutions for the reduction or refining of ores or

metals to eight hours per day, except in like cases of emergency, The

act was held to be a valid exercise of the police powers of the Btate, A

Lochner vs, State of New York.

review of many of the cases on the subject, decided by this and other -

courts, is given in the opinion. It was held that the kind of employment,

mining, smelting, &,, and the character of the employees in such kinds

of labor, were such as to make it reasonable and proper for the State to

interfere to prevent the employees from being constrained by the rules laid

down by the proprietors in regard to labor, The following citation from

the observations of the Supreme Court of Utah in that case was made by

the judge writing the opinion of this court, and approved; “ The law in

question is confined to the protection of that class of people engaged in

labor in underground mines, and in smelters and other works wherein

ores are reduced and refined. This law applies only to the classes sub-

jected by their employment to the peculiar conditions and effects attending

underground mining and work in smelters, and other works for the re-

duction and refining of ores, Therefore it is not necessary to discuss or

decide whether the legislature can fix the hours of labor in other employ-

ments,”

It will be observed that, even with regard to that class of labor, the

Utah statute provided for cases of emergency wherein the provisions of

the statute would not apply. The statute now before this court has no

emergeney clause in it, and, if the statute is valid, there are no circumstances

and no emergencies under which the slightest violation of the provisions

of the act would beinnocent. There is nothing in Holden v, Hardy which

covers the case now before us. Nor does Atkins v, Kansas, (191 U,8, 207,)

touch the case at bar, The Atkins case was decided upon the right of the

State to control its municipal corporations and to prescribe the conditions

upon which it will permit work of a public character to be done for a

municipality. Knowville Co, vy, Harbison, (183 U, 8, 13,) is equally far

from an authority for this legislation, The employees in that case were

held to be at a disadvantage with the employer in matiers of wages, they

being miners and coal workers, and the act simply provided for the cash-

ing of coal orders when presented by the miner to the employer,

The latest case decided by this court, involving the police power, is that

of Jacobson v. Massachusetts, decided at this term and reported in 197

U.8, 11. It related to compulsory vaccination, and the law was held

valid as a proper exercise of the police powers with reference to the publie

health. It was stated in the opinion that it was a case “of an adult who,

for aught that appears, was himself in perfeet health and a fit subject for

vaccination, and yet, while remaining in the community, refused to obey

the statute and the regulation, adopted in exeeution of ite provisions, for

the protection of the public health and the public safety, confessedly

endangered by the presence of a dangerous disease.” That case is also

far from covering the one now before the court. :

Loohner vs. State of New York,

Petit vy. Minnesota, (177 U. 8, 164,) was upheld as a proper exercise of

the power relating to the observance of Sunday, and the case held

that the legislature had the right to declare that, as matter of law, keeping

barber shops open on Sunday was not a work of necessity or charity,

It must, of course, be conceded that there is a limit to the valid exer-

of the police power by the State, There is no dispute concerning this

general proposition, Otherwise the Fourteenth Amendment would have

no efficacy and the legislatures of the States would have unbounded power,

and \t would be enough to say that any piece of legislation was enacted to

conserve the morals, the health or the safety of the people ; such legislation

would be valid, no matter how absolutely without foundation the claim

might be, The claim of the police power would be a mere pretext—he-

come another and delusive name for the supreme sovereignty of the State

to he exercised free from constitutional restraint, This is not contended for,

Tn every case that comes before this court, therefore, where legislation of

this character is concerned and where the protection of the Federal Con-

stitution is sought, the question necessarily arises; Is this a fair, reasonable

and appropriate exercise of the police power of the State, or is it an un-

reasonable, unnecessary and arbitrary interference with the right of the

individual to his persone! liberty or to enter into those contracts in rela-

tion to labor which may seem to him appropriate or necessary for the sup-

port of himself and his family? Of course the liberty of contract relating

to labor inviudes both parties toit, The one has as much right to purchase

as the other to sell labor,

This is not a question of substituting the judgment of the court for that

of the legislature, If the act be within the power of the State it is valid,

although the judgment of the court might be totally opposed to the en-

actment of such a law, But the question would still remain: Is it within

the police power of the State? and that question must be answered by the

court.

The question whether this act is valid as a labor law, pure and simple,

may be dismissed in afew words, There is no reasonable ground for in-

terfering with the liberty of person or the right of free contract, by

determining the hours of labor, in the occupation of a baker, There is

no contention that bakers as a class are not equal in intelligence and

capacity to men in other trades or manual occupations, or that they are

not able to assert their rights and care for themselves without the protect-

ing arm of the Mtate, interfering with their independence of judgment and

of action, They are in no sense wards of the Btate, Viewed in the light

of a purely labor law, with no reference whatever jo the question of health,

we think that a law like the one before us involves neither the safety, the

morale nor the welfare of the public, and that the interest of the public

is not in the slightest degree affected by such an act. The law must be

7

Lochner va, State of New York, 7

upheld, if at all, as a law pertaining to the health of the individual en-

gaged in the occupation of a baker, It does not affect any other portion

of the public than those who are engaged in that occupation, Clean and

wholesome bread does not depend upon whether the baker works but ten

hours per day or only sixty hours a week, The limitation of the hours of

labor does not come within the police power on that ground,

It is a question of which of two powers or rights shall prevail—the power

of the State to legislate or the right of the individual to liberty of person

and freedom of contract, The mere assertion that the subject relates

though but in a remote degree to the public health does not necessarily

render the enactment valid, The act must have a more direct relation, as

& means to an end, and the end itself must be appropriate and legitimate,

before an act can be held to be valid which interferes with the general

right of an individual to be free in his person and in his power to contract

in relation to his own labor,

This case has caused much diversity of opinion in the State courts, In

the Supreme Court two of the five judges composing the court dissented

from the judgment affirming the validity of the act, In the Court of A P

peals three of the seven judges also dissented from the judgment uphold-

ing the statute, Although found in what is called a labor Jaw of the

Siate, the Court of Appeals has upleid the act as one relating to the

public health—in other words, as a health law. One of the judges of the

sourt of Appeals, in upholding the law, stated that, in his opinion, the

regulation in question could not be sustained unless they were able to

say, from common knowledge, that working in a bakery and candy fac-

tory was an unhealthy employment, The judge held that, while the evi-

dence was not uniform, it still led him to the conclusion that the occu pia

tion of a baker or confectioner was unhealthy and tended to result in

diseases of the respiratory organs, Three of the judges dissented from

that view, and they thought the oceupation of a baker was not to such an

extent unhealthy as to warrant the interference of the legislature with the

liberty of the individual,

We think the limit of the police power has been reached and passed in

this case, There is, in our judgment, no reasonable foundation for hold-

ing this to be necessary or appropriate as a health law to safeguard the

public health or the health of the individuals who are following the trade

of & Iaker, If this statute be valid, and if, therefore, a proper case is

made out in which to deny the right of an individual, sui Juris, as employer

or employee, t» make contracts for the labor of the latter under the pro-

tection of the provisions of the Federal Constitution, there would seem to

he no length to which legislation of this nature might not go. The case

differs widely, as we have already stated, from the expressions of this

ee

8 Lochner vo, State of New York,

court in regard to laws of this nature, as stated in Holden v, Hardy and

Jacobson ¥. Massachusetts, supra,

We think that there can be no fair doubt that the trade of a baker, in

and of itself, is not an unhealthy one to that degree which would authorize

the legislature to interfere with the right to labor, and with the right of

free contract on the part of the individual, either as employer or employee,

In looking through statistics regarding al! trades and occupations, it may

be true that the trade of a baker does not appear to be as healthy as some

other trades, and is also vastly more healthy than still others, To the

common understanding the trade of a baker has never been regarded as

an unhealthy one, Very likely physicans would not recommend the

exercise of that or of any other trade as a remedy for ill health, Some

ooeupations are more healthy than others, but we think there are none

which might not come under the power of the legislature to supervise and

control the hours of working therein, if the mere fact that the occupation

is not absolutely and perfectly healthy is to confer that right upon the

legislative department of the government, It might be safely affirmed

that almost all occupations more or less affect the health, There must be

more than the mere fact of the possible existence of some small amount of

unhealthiness to warrant legislative interference with liberty, It is unfor-

tunately true that labor, even in any department, may possibly carry with

it the seeds of unhealthiness, But are we all, on that account, at the

mercy of legislative mujorities? A printer, a tinamith, a locksmith, a

carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a

physican’s clerk, or a clerk in almost any kind of business, would all

come under the power of the legislature, on this assumption, No trade,

no occupation, no mode of earning one’s living, could escape this all-

pervading power, and the acts of the legislature in limiting the hours

of labor in all employments would be valid, although euch limitation

might seriously cripple the ability of the laborer to support himself and his

family, In our large cities there are many buildings into which the sun

penetrates for but a short time in each day, and these buildings are oceu-

pied by people carrying on the business of bankers, brokers, lawyers, real

estate, and many other kinds of business, aided by many clerks, messen-

gers, and other employees, Upon the assumption of the validity of

this act under review, it is not possible to way that an act, probibiting

lawyers’ or bank clerks, or others, from contracting to labor for their

employers more than eight hours a day, would be invalid, It might be

said that it is unhealthy to work more than that number of hours in

an apartment lighted by artificial light during the working hours of the

day; that the oceupation of the bank clerk, the lawyer's clerk, the veal

estate clerk, or the broker's clerk in such offices is therefore unhealthy,

aud the legislature iv its paternal wisdom must, therefore, have the right

Lochner ve. State of New York, 9

to legislate on the subject of and to limit the hours for such labor, and if

it exercises that power and its validity be questioned, it is sufficient to say,

it has reference to the public health ; it has reference to the health of the

employees condemned to labor day after day in buildings where the sun

never shines; it is a health law, and therefore it is valid, and cannot be

questioned by the courts.

It is also urged, pursuing the same line of argument, that it is to the

interest of the State that its population should be strong and robust, and

therefore any legislation which may be said to tend to make people healthy

must be valid as health laws, enacted under the police power, If this

he a valid argument and a justification for this kind of legislation, it

follows that the protection of the Federal Constitution from undue in-

terference with liberty of person and freedom of contract is visionary,

wherever the law is sought to be justified as a valid exercise of the police

power, Wearcely any law but might find shelter under such assump-

tions, and conduct, properly so called, as well as contract, would come

under the restrictive sway of the legislature, Not only the hours of

employees, but the hours of employers, could he regulated, and doctors,

lawyers, scientists, all professional men, as well as athletes and artisans,

could be forbidden to fatigue their brains and bodies by prolonged hours

of exercise, lest the fighting strength of the State be impaired, We men-

tion these extreme cases because the contention is extreme, We do not

helieve in the soundness of the views which uphold this law, On the eon-

trary, we think that such a law as this, although passed in the assumed exer-

cise of the police power, and as relating to the public health, or the health

of the employees named, is not within that power, and is invalid, The act

is not, within any fair meaning of the term, a health law, but is an illege'

interference with the rights of individuals, both employers and employe

to make contracts regarding labor upon such terms as they may thinn

best, or which they may agree upon with the other parties to such son-

tracts, Mtatutes of the nature of that under review, limiting the hours in

which grown and intelligent men may jabor to earn their living, ave mere

meddlesome interferences with the rights of the individual, and they are no’

saved from condemnation by the claim that they are passed in the exercise

of the police power and upon the subject of the health of the individual

whose rights are interfered with, unless there be some fair ground, resson-

able in and of itself, to say that there ir material danger tothe public

health or to the health of the employees, if the hours of labor ave not

curtailed, If this be not clearly the case the individuals, whose rights are

thus made the subject of legislative interference, are under the protection

of the Pederal Constitution regarding their liberty of contract as well as

of person; and the legislature of the State has no power to limit their right

as proposed in this statute, All that it could properly do bas been done by

10 Lochner vs. State of New York.

it with regard to the conduct of bakeries, as provided for in the other sec-

tions of the act, above set forth. These several sections provide for the in-

spection of the premises where the bakery is carried on, with regard to fur-

nishing proper wash rooms and water closets, apart from the bake rvom, also

with regard to providing proper drainage, plumbing and painting; the sec-

tions, in addition, provide for the height of the ceiling, the cementing or tiling

of floors, where necessary in the opinion of the factory inspector, and for

other things of that nature; alterations are also provided for and are

to be made where necessary in the opinion of the inspector, in order to

comply with the provisions of the statute. These various sections may

be wise and valid regulations, and they certainly go to the full extent

of providing for the cleanliness and the healthiness, so far as possible,

of the quarters in which bakeries are to be conducted. Adding to all

these requirements, a prohibition to enter into any contract of labor in a

bakery for more than a certain number of hours a week, is, in our judg-

ment, so wholly beside the matter of a proper, reasonable and fair pro-

vision, as to run counter to that liberty of person and of free contract

provided for in the Federal Constitution.

It was further urged on the argument that restricting the hours of labor

in the case of bakers was valid because it tended to cleanliness on the part

of the workers, as a man was more apt to be cleanly when not overworked,

and if cleanly then his “output” was also more likely to be so. What

has already been said applies with equal force to this contention. We do

not admit the reasoning to be sufficient to justify the claimed right of such

interference. The State in that case would assume the position of a super-

visor, or pater familias, over every act of the individual, and its right of

governmental interference with his hours of labor, his hours of exercise,

the character thereof, and the extent to which it shall be carried would

be recognized and upheld. In our judgment it is not possible in fact

to discover the connection between the number of hours a baker may

work in the bakery and the healthful quality of the bread made by the

workman. The connection, if any exist, is too shadowy and thin to build

any argument for the interference of the legislature. If the man works

ten hours a day it is all right, but if teu and a half or eleven his health

is in danger and his bread may be unhealthy, and, therefore, he shall not

be permitted to do it. This, we think, is unreasonable and entirely arbi-

trary. When assertions such as we have adverted to become necessary in

order to give, if possible, a plausible foundation for the contention that the

law is a “ health law,” it gives rise to at least a suspicion that there was

some other motive dominating the legislature than the purpose to subserve

the public health or welfare.

This interference on the part of the legislatures of the several States

with the ordinary trades and occupations of the people seems to be on the

Lochner vs. State of New York. 11

increase. In the Supreme Court of New York, in the case of People v.

Beattie, Appellate Division, First Department, decided in 1904, (89 N. Y.

Supp. 193,) a statute regulating the trade of horseshoeing, and requiring

the person practicing such trade to be examined and to obtain a certificate

from a board of examiners and file the same with the clerk of the county

wherein the person proposes to practice such trade, was held invalid, as

an arbitrary interference with personal liberty and private property with-

out due process of law. The attempt was made, unsuccessfully, to justify

it as a health law.

The same kind of a statute was held invalid (Jn re Aubry) by the

Supreme Court of Washington in December, 1904. (78 Pac. Rep. 900.)

The court held that the act deprived citizens of their liberty and property

without due process of law and denied to them the equal protection of the

laws. It also held that the trade of a horseshoer is not a subject of regu-

lation under the police power of the State, as a business concerning and

directly affecting the health, welfare or comfort of its inhabitants; and

that therefore a law which provided for the examination and registration

of horseshoers in certain cities was unconstitutional, as an illegitimate

exercise of the police power.

The Supreme Court of Illinois in Bessette v. People, (193 Ill. 334,) also

held that a law of the same nature, providing for the regulation and

licensing of horseshoers, was unconstitutional as an illegal interference with

the liberty of the individual in adopting and pursuing such calling as he

may choose, subject only to the restraint necessary to secure the common

welfare. See also Godcharles vy. Wigeman, (113 Penn. St. 431, 437;) Low

v. Rees Printing Co., (41 Neb. 127,145.) In these cases the courts upheld

the right of free contract and the right to purchase and sell labor upon

such terms as the parties may agree to.

It is impossible for us to shut our eyes to the fact that many of the laws

of this character, while passed under what is claimed to be the police

power for the purpose of protecting the public health or welfare, are, in

reality, passed from other motives. We are justified ia saying so when, from

the character of the law and the subject upon which it legislates, it is

apparent that the public health or welfare bears but the most remote

relation to the law. ‘The purpose of a statute must be determined from

the natural and legal effect of the language employed; and whether it is

or is not repugnant to the Constitution of the United States must be

determined from the natural effect of such statutes when put into operation,

and not from their proclaimed purpose. (Minnesota v. Barber, 136 U. 8.

313; Brimmer v. Rebman, 138 Id.78.) The court looks beyond the mere

letter of the law in such cases. (Yick Wo v. Hopkins, 118 U.S. 356.)

It is manifest to us that the limitation of the hours of labor as provided

for in this section of the statute under which the indictment was found,

12 Lochner vs. State of New York.

and the plaintiff in error convicted, has no such direct relation to and

no such substantial effect upon the health of the employee, as to justify

us in regarding the section as really a health law. It seems to us that

the real object and purpose were simply to regulate the hours of labor

between the master and his employees, (all being men, sui juris,) in a

private business, not dangerous in any degree to morals or in any real and

substantial degree, to the health of the employees. Under such circum-

stances the freedom of master and employee to contract with each other in

relation to their employment, and in defining the same, cannot be prohibited

or interfered with, without violating the Federal Constitution.

The judgment ofthe Court of Appeals of New York aswell as that of

the Supreme Court and of the County Court of Oneida County must be re-

versed and the case remanded to the County Court for further proceedings

not inconsistent with this opinion.

Reversed,

True copy.

Test:

Clerk Supreme Court, U. 8.

Supreme Court of the Gnitey States.

No. 292.—Ocroser Term, 1904.

Oneida County, State of New

Joseph Lochner, Plaintiff in Error, In error to the County Court of

York.

v8.

The People of the State of New York.

[April 17th 1905.]

Mr. Justice HARLAN (with whom Mr. Justice Wurre and Mr. Justice

Day concurred) dissenting.

While this court has not attempted to mark the precise boundaries of

what is called the police power of the State, the existence of the power

has been uniformly recognized, equally by the Federal and State courts.

All the cases agree that this power extends at least to the protection of

the lives, the health and the safety of the public against the injurious

exercise by any citizen of his own rights.

In Patterson v. Kentucky, 97 U.S. 501, after referring to the general

principle that rights given by the Constitution cannot be impaired by State

legislation of any kind, this court said: “It [this court] has, nevertheless,

with marked distinctness and uniformity, recognized the necessity, growing

out of the fundamental conditions of civil society, of upholding State police

regulations which were enacted in good faith, and had appropriate and

direct connection with that protection to life, health and property which

each State owes to her citizens.” So in Barbier v. Connolly, 113 U.S. 27:

“But neither the [14th] Amendment—broad and comprehensive as it is—

nor any other amendment was designed to interfere with the power of the

State, sometimes termed its police power, to prescribe regulations to pro-

mote the health, peace, morals, education and good order of the people.”

Speaking generally, the State in the exercise of its powers may not

unduly interfere with the right of the citizen to enter into contracts

that may be necessary and essential in the enjoyment of the inherent rights

belonging to every one, among which rights is the right “to be free in the

enjoyment of all his faculties, to be free to use them in all lawful ways,

to live and work where he will, to earn his livelihood by any lawful call-

ing, to pursue any livelihood or avocation.” This was declared in Allgeyer

v. Louisiana, 165 U.S.578, 589. But in the same case it was conceded that

the right to contract in relation to persons and property or to do business,

within a State, may be “regulated and sometimes prohibited, when the con-

2 Lochner vs. State of New York.

tracts or business conflicted with the policy of the State as contained in its

statutes.” (p. 591.)

So, as said in Holden v. Hardy, 169 U. 8. 366, 391: “This right of con-

tract, however, is itself subject to certain limitations which the State may

lawfully impose in the exercise of its police powers. While this power is

inherent in all governments, is has doubtless been greatly expanded in its

application during the past century, owing to an enormous increase in the

number of occupations which are dangerous, or so far detrimental to the

health of the employés as to demand special precautions for their well-

being and protection, or the safety of adjacent property. While this court

has held, notably in the cases of Davidson v. New Orleans, 96 U. 8. 97,

and Yick Wo. v. Hopkins, 118 U. S. 356, that the police power cannot be

put forward as an excuse for oppressive and unjust legislation, it may be

lawfully resorted to for the purpose of preserving the public health, safety

or morals, or the abatement of public nuisances, and a large discretion ‘ is

necessarily vested in the legislature to determine not only what the inter-

ests of the public require, but what measures are necessary for the protec-

tion of such interests.’ Lawton v. Steele, 152 U. S. 133,136.” Referring to

the limitations placed by the State upon the hours of workmen, the court

in the same case said (p. 395:) “These employments, when too long pur-

sued, the legislature has judged to be detrimental to the health of the

employés, and, so long as there are reasonable grounds for believing that

this is so, its decision upon this subject cannot be reviewed by the Federal

. courts.”

Subsequently in Gundling v. Chicago, 177 U. S. 183, 188, this court

said: “ Regulations respecting the pursuit of a lawful trade or business

are of very frequent occurrence in the various cities of the country, and

what such regulations shall be and to what particular trade, business or

occupation they shall apply, are questions for the State to determine, and

their determination comes within the proper exercise of the police power

by the State, and unless the regulations are so utterly unreasonable and

extravagant in their nature and purpose that the property and personal

rights of the citizen are unnecessarily, and in a manner wholly arbitrary,

interfered with or destroyed without due process of law, they do not ex-

tend beyond the power of the State to pass, and they form no subject

for Federal interference. As stated in Crowley v. Christensen, 137 U. S.

86, ‘the possession and enjoyment of all rights are subject to such reason-

able conditions as may be deemed by the governing authority of the

country essential to the safety, health, peace, good order and morals of the

community.’”

In St. Louis, Iron Mountain &e. Ry. v. Paul, 173 U. 8. 404, 409,

and in Knoxville Iron Co. v. Harbison, 183 U. S. 13, 21-2, it was dis-

_——

tinctly adjudged that the right of contract was not “absolute, but may be

subjected to the restraints demanded by the safety and welfare of the

State.” Those cases illustrate the extent to which the State may re-

strict or interfere with the exercise of the right of contracting.

The authorities on the same line are so numerous that further citations

are unnecessary.

I take it to be firmly established that what is called the liberty of

contract may, within certain limits, be subjected to regulations designed

and calculated to promote the general welfare or to guard the public

health, the public morals or the public safety. “The liberty secured by

the Constitution of the United States to every person within its juris-

diction does not import,” this court has recently said, “an absolute right

in each person to be at all times and in all circumstances wholly freed

from restraint. There are manifold restraints to which every person is

necessarily subject for the common good.” Jacobson v. Massachusetts, 196

U.S. 11.

Granting then that there is a liberty of contract which cannot be vio-

lated even under the sanction of direct legislative enactment, but assuming,

as according to settled law we may assume, that such liberty of contract

is subject to such regulations as the State may reasonably prescribe for the

common good and the well being of society, what are the conditions under

which the judiciary may declare such regulations to be in excess of legisla-

tive authority and void? Upon this point there is no room for dispute ; for,

the rule is universal that a legislative enactment, Federal or State, is never

to be disregarded or held invalid unless it be, beyond question, plainly and

palpably in excess of legislative power. In Jacobson v. Massachusetts,

supra, we said that the power of the courts to review legislative action in

respect of a matter affecting the general welfare exists on/y “when that

which the legislature has done comes within the rule that if a statute

purporting to have been enacted to protect the public health, the public

morals or the public safety, has no real or substantial relation to those

objects, or is, beyond all question, a plain, palpable invasion of rights

secured by the fundamental law”—citing Mugler v. Kansas, 123 U. 8.

623, 661; Minnesota v. Barber, 136 U. S. 313, 320; Atkin v. Kansas, 191

U. §. 207, 223. If there be doubt as to the validity of the statute, that

doubt must therefore be resolved in favor of its validity, and the courts must

keep their hands off, leaving the Legislature to meet the responsibility for

unwise legislation. If the end which the Legislature seeks to accomplish

be one to which its power extends, and if the means employed to that end,

although not the wisest or best, are yet not plainly and palpably unauthor-

ized by law, then the court cannot interfere. In other words, when the

validity of a statute is questioned, the burden of proof, so to speak, is upon

Lochner vs. State of New York. 3

4 Lochner vs. State of New York.

those who assert it to be unconstitutional. McCulloch v. State of Maryland,

4 Wheat. 316, 421.

Let these principles be applied to the present case. By the statute in

question it is provided that, “ 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 number of days during such week in

which such employee shall work.”

It is plain that this statute was enacted in order to protect the physical

well-being of those who work in bakery and confectionery establishments.

It may be that the statute had its origin, in part, in the belief that em-

ployers and employees in such establishments were not upon an equal foot-

ing, and that the necessities of the latter often compelled them tosubmit to

such exactions as unduly taxed their strength. Be this as it may, the statute

must be taken as expressing the belief of the people of New York that, as

a general rule, and in the case of the average man, labor in excess of sixty

hours during a week in such establishments may endanger the health of

those who thus labor. Whether or not this be wise legislation it is not the

province of the court to inquire. Under our systems of government the

courts are not concerned with the wisdom or policy of legislation. So

that in determining the question of power to interfere with liberty of con-

tract, the court may inquire whether the means devised by the State

are germane to an end which may be lawfully accomplished and have a

real or substantial relation to the protection of health, as involved in the daily

work of the persons, male and female, engaged in bakery and confectionery

establishments. But when this inquiry is entered upon I find it impossible,

in view of common experience, to say that there is here no real or substantial

relation between the means employed by the State and the end sought to be

accomplished by its legislation. Mugler v. Kansas, supra. Nor can I say

that the statute has no appropriate or direct connection with that protection

to health which each State owes to her citizens, Patterson v. Kentucky, supra ;

or that it is not promotive of the health of the employés in question, Holden

v. Hardy, Lawton v. Steele, supra; or that the regulation prescribed by

the State is utterly unreasonable and extravagant or wholly arbitrary,

Gundling v. Chicago, supra. Still less can I say that the statute is, beyond

question, a plain, palpable invasion of righs secured by the fundamental

law. Jacobson v. Massachusetts, supra. Therefore I submit that this court

will transcend its functions if it assumes to annul the statute of New York.

It must be remembered that this statute does not apply to all kinds of

business. It applies only to work in bakery and confectionery establish-

Lochner vs. State of New York. 5

ments, in which, as all know, the air constantly breathed by workmen is

not qs pure and healthful as that to be found in some other establish-

ments or out of doors.

Professor Hirt in his treatise on the “ Diseases of the Workers” has

said: ‘‘ The labor of the bakers is among the hardest and most labo-

rious imaginable, because it has to be performed under conditions injurious

to the health of those engaged in it. It is hard, very hard work, not only

because it requires a great deal of physical exertion in an overheated

workshop and during unreasonably long hours, but more so because of the

erratic demands of the public, compelling the baker to perform the greater

part of his work at night, thus depriving him of an opportunity to enjoy

the necessary rest and sleep, a fact which is highly injurious to his health.’’

Another writer says: “The constant inhaling of flour dust causes inflam-

mation of the lungs and of the bronchial tubes. The eyes also suffer

through this dust, which is responsible for the many cases of running eyes

among the bakers. The long hours of toil to which all bakers are sub-

jected produces rheumatism, cramps and swollen legs. The intense heat

in the workshops induces the workers to resort to cooling drinks, which to-

gether with their habit of exposing the greater part of their bodies to the

change in the atmosphere, is another source of a number of diseases of

various organs. Nearly all bakers are pale-faced and of more delicate

health than the workers of other crafts, which is chiefly due to their hard

work and their irregular and unnatural mode of living, whereby the power

of resistance against disease is greatly diminished. The average age of a

baker is below that of other workmen ; they seldom live over their fiftieth

year, most of them dying between the ages of forty and fifty. During

periods of epidemic diseases the bakers are generally the first to succumb

to the disease, and the number swept away during such periods far exceeds

the number of other crafts in comparison to the men employed in the re-

spective industries. When, in 1720, the plague visited the city of Mar-

seilles, France, every baker in the city succumbed to the epidemic, which

caused considerable excitement in the neighboring cities and resulted in

measures for the sanitary protection of the bakers.”

In the Eighteenth Annual Report by the New York Bureau of Statis-

tics of Labor it is stated that among the occupations involving exposure

to conditions that interfere with nutrition is that of a baker. (p.52.) In

that Report it is also stated that “from a social point of view, pro-

duction will be increased by any change in industrial organization which

diminishes the number of idlers, paupers, and criminals. Shorter hours

of work, by allower higher standards of comfort and purer family life,

promise to enhance the industrial efficiency of the wage-working class—

improved health, longer life, more content and greater intelligence and in-

ventiveness.” (p. 82.)

6 Lochner vs. State of New York.

Statistics show that the average daily working time among workingmen

in different countries is, in Australia, 8 hours; in Great Britain, 9; in

the United States, 97; in Denmark, 9}; in Norway, 10; Sweden, France

and Switzerland, 103 ; Germany, 10}; Belgium, Italy and Austria, 11; and

in Russia, 12 hours.

We judicially know that the question of the number of hours during

which a workman should continuously labor has been, for a long period,

and is yet, a subject of serious consideration among civilized peoples, and

by those having special knowledge of the laws of health. Suppose the

statute prohibited labor in bakery and confectionery establishments in

excess of eighteen hours each day. No one, I take it, could dispute the

power of the State to enact such a statute. But the statute before us does

not embrace extreme or exceptional cases. It may be said to occupy a

middle ground in respect of the hours of labor. What is the true ground

for the State to take between legitimate protection, by legislation, of the

public health and liberty of contract is not a question easily solved, nor

one in respect of which there is or can be absolute certainty. There are

very few, if any, questions in political economy about which entire cer-

tainty may be predicated. One writer on relation of the State to labor

has well said: “The manner, occasion, and degree in which the State

may interfere with the industrial freedom of its citizens is one of the most

debatable and difficult questions of social science.” Jevons, 33.

We also judicially know that the nnmber of hours that should consti-

tute a day’s labor in particular occupations involving the physical strength

and safety of workmen has been the subject of enactments by Congress and

by nearly all of the States. Many, if not most, of those enactments fix

eight hours as the proper basis of a day’s labor.

I do not stop to consider whether any particular view of this economic

question presents the sounder theory. What the precise facts are it may be

difficult to say. It is enough for the determination of this case, and it is

enough for this court to know, that the question is one about which there

is room for debate and for an honest difference of opinion. ‘There are

many reasons of a weighty, substantial character, based upon the experience

of mankind, in support of the theory that, all things considered, more than

ten hours’ steady work each day, from week to week, in a bakery or confec-

tionery establishment, may endanger the health, and shorten the lives of

the workmen, thereby diminishing their physical and mental capacity to

serve the State, and to provide for those dependent upon them.

If such reasons exist that ought to be the end of this case, for the

State is not amenable to the judiciary, in respect of its legislative enact-

ments, unless such enactments are plainly, palpably, beyond all question,

inconsistent with the Constitution of the United States. We are not

to presume that the State of New York has acted in bad faith. Nor can we

Lochner vs. State of New York. 7

assume that its Legislature acted without due deliberation, or that it did

not determine this question upon the fullest attainable information, and

for the common good. We cannot say that the State has acted without

reason nor ought we to proceed upon the theory that its action is a mere

sham. Our duty, I submit, is to sustain the statute as not being in con-

flict with the Federal Constitution, for the reason—and such is an all-suffi-

cient reason—it is not shown to be plainly and palpably inconsistent with

that instrument. Let the State alone in the management of its purely

domestic affairs, so long as it does not appear beyond all question that it

has violated the Federal Constitution. This view necessarily results from

the principle that the health and safety of the people of a State are pri-

marily for the State to guard and protect.

I take leave to say that the New York statute, in the particulars here

involved, cannot be held to be in conflict with the Fourteenth Amend-

ment, without enlarging the scope of the Amendment far beyond its orig-

inal purpose and without bringing under the supervision of this court

matters which have been supposed to belong exclusively to the legislative

departments of the several States when exerting their conceded power to

guard the health and safety of their citizens by such regulations as they

in their wisdom deem best. “ Health laws of every description constitute,”

said Chief Justice Marshall, a part of that mass of legislation which “em-

braces everything within the territory of a State, not surrendered to the

General Government, and which could be most advantageously exercised

by the States themselves.” Gibbons v. Ogden, 9 Wheat. 1, 203. <A de-

cision that the New York statute is void under the Fourteenth Amend-

ment will, in my opinion, involye consequences of a far-reaching and

mischievous character ; for such a decision would seriously cripple the in-

herent power of the States to care for the lives, health, and well-being of

their citizens. Those are matters which can be best controlled by the States.

The preservation of the just powers of the States is quite as vital as the

preservation of the powers of the General Government.

When this court had before it the question of the constitutionality of a

statute of Kansas making it a criminal offence for a contractor for public

work to permit or require his employés to perform labor upon such work

in excess of eight hours each day, it was contended that the statute was

in derogation of the liberty both of employésand employer. It was further

contended that the Kansas statute was mischievous in its tendencies. This

court, while disposing of the question only as it affected public work, held

that the Kansas statute was not void under the Fourteenth Amendment.

But it took occasion to say what may well be here repeated: “The responsi-

bility therefor rests upon legislators, not upon the courts. No evils arising

from such legislation could be more far-reaching than those that might come

,

8 Lochner vs. State of New York.

to our system of government if the judiciary, abandoning the sphere assigned

to it by the fundamental law, should enter the domain of legislation, and upon

grounds merely of justice or reason or wisdom annul statutes that had re-

ceived the sanction of the people’s representatives. We are reminded by

counsel that it is the solemn duty of the courts in cases before them to guard

the constitutional rights of the citizen against merely arbitrary power. That

is unquestionably true. But it is equally true—indeed, the public interests

imperatively demand—that legislative enactments should be recognized

and enforced by the courts as embodying the will of the people, unless

they are plainly and palpably beyond all question in violation of the

fundamental law of the Constitution.” Atkin v. Kansas, 191 U.S. 207,

223.

The judgment in my opinion should be affirmed.

Clerk Supreme Court, U. 8.

Supreme Court of the Gnited States.

No. 292.—Ocroser Term, 1904.

Joseph Lochner, Plaintiff in Error, e Error to the County Court of

v8. Oneida County, State of New

The People of the State of New York. York.

[April 17, 1905.]

Mr. Justice HoLmes dissenting.

I regret sincerely that I am unable to agree with the judgment in this

case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the

country does not entertain. If it were a question whether I agreed with

that theory, I should desire to study it further and long before making up

my mind. But I do not conceive that to be my duty, because I strongly

believe that my agreement or disagreement has nothing to do with the

right of a majority to embody their opinions in law. It is settled by various

decisions of this Court that State constitutions and State laws may regulate

life in many ways which we as legislators might think as injudicious or if

you like as tyrannical as this, and which equally with this interfere with

the liberty to contract. Sunday laws and usury laws are ancient examples.

A more modern one is the prohibition of lotteries. The liberty of the

citizen to do as he likes so long as he does not interfere with the liberty

of others to do the same, which has been a shibboleth for some well-known

writers, is interfered with by school laws, by the Post Office, by every

State or municipal institution which takes his money for purposes thougbt

desirable, whether he likes it or not. The Fourteenth Amendment does not

enact Mr. Herbert Spencer's Social Statics. The other day we sustained

the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. 8,

United States and State statutes and decisions cutting down the liberty

to contract by way of combination are familiar to this Court. Northern

Securities Co. v. United States, 193 U.S.197. Two years ago we upheld

the prohibition of sales of stock on margins or for future delivery in the

Constitution of California. Ofis v. Parker, 187 U.S. 606. The decision

sustaining an eight hour law for miners is still recent. Holden v. Hardy,

169 U. S. uv6. Some of chese laws embody convictions or prejudices

which judges are likely toshare. Some may not. But a Constitution is not

intended to embody a particular economic theory, whether of paternalism

and the organic relation of the citizen to the State or of laissez faire. It

2 Lochner vs. State of New York.

is made for people of fundamentally differing views, and the accident of

our finding certain opinions natural and familiar or novel and even shock-

ing ought not to conclude our judgment upon the question whether statutes

embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will de-

pend on a judgment or intuition more subtle than any articulate major

premise. But I think that the proposition just stated, if it is accepted,

will carry us far toward the end. Every opinion tends to become a law.

I think that the word liberty in the Fourteenth Amendment is perverted

when it is held to prevent the natural outcome of a dominant opinion,

unless it can be said that a rational and fair man necessarily would admit

that the statute proposed would infringe fendamental principles as they

have been understood by the traditions o’ our people and our law. It

does not need research to show that no such sweeping condemnation can

be passed upon the statute before us. A reasonable man might think it a

proper measure on the score of health. Men whom I certainly could not

pronounce unreasonable would uphold it as a first instalment of a general

regulation of the hours of work. Whether in the latter aspect it would

be open to the charge of inequality I think it unnecessary to discuss.

True copy.