I agree with Judge O'BRIEN for reversal. In one of the encyclopædia authorities cited for respondent it is said: "Bakers and confectioners who, during working hours, constantly breathe air filled with the finest dust from flour and sugar, have a tendency to consumption," etc. The authorities cited condemning the calling of a baker as unhealthy, doubtless refer to localities where they grind the grain, loaf-sugar and other materials used. It may be observed in passing that "the medical authorities without number" might lose some of their force if the writers were, where they should be, in court and subjected to cross-examination.
It is common experience that the baker, like the cooks in hotels, restaurants and private families, has provided for him in his business flour, sugar and the other ingredients duly prepared for immediate use. The claim that the compounding of these constituents, so prepared, in the business of a baker, is an unhealthy occupation, will surprise the bakers and good housewives of this state. The grinding of steel, like the needle-grinding of Sheffield, England, and of other similar materials and substances, causing clouds of impalpable dust, is not to be confounded with the avocation of the family baker engaged in the necessary and highly appreciated labor of producing *Page 188 bread, pies, cakes and other commodities more calculated to cause dyspepsia in the consumer than consumption in the manufacturer.
The country miller of fifty years ago who passed a long and happy life amid the hum of machinery and the grinding process of the upper and nether stones, little dreamed of a coming day when the legislature, in the full panoply of paternalism, would rescue his successor from the appalling dangers of the life he led until old age summoned him to retire.
It has been frequently said that the limits of the police power cannot be accurately defined; that it is not desirable the legislature should be thus trammeled.
When this court held that the legislature acted in the legitimate, undiscriminating exercise of the police power in compelling all barbers to observe strictly the first day of the week, commonly called Sunday, except in the village of Saratoga Springs and the city of New York, the legal profession doubtless concluded that the elasticity of the undefined had arrived at itsUltima Thule. (People v. Havnor, 149 N.Y. 195.) That this conclusion was erroneous is shown by the fact that the case is now doing duty against the baker when men in kindred occupations are permitted to work as many hours as necessity dictates.
Another question in this case is whether section 110, contained in article 8 of the Labor Law (Chapter 415, Laws of 1897), is within the police power. This section is contained in article 8, which consists of sections 110, 111, 112, 113, 114 and 115. I am of the opinion that all the sections of said article, excepting section 110, are within the police power, relating as they do to sanitary conditions concerning the business of a baker. Placing section 110, relating exclusively as it does to hours of labor in bakeries and confectionery establishments, in article 8, does not bring it within the police power.
In a recent case this court said: "In the interest of public health, of public morals and of public order, a state may restrain and forbid what would otherwise be the right of a *Page 189 private citizen. It may enact laws to regulate the extent of labor which women and children or persons of immature years shall be allowed to perform, and prohibit altogether their employment in dangerous occupations. (Commonwealth v. Hamilton Mfg. Co.,120 Mass. 383; Tiedeman's Police Power, § 85.)" (People v.Orange County Road Cons. Co., 175 N.Y. 84, 87, 88.)
The state may also regulate the hours of labor in deep and unhealthy mines, and in any vocation where it is pursued at the risk of health and life. It is because I believe that the occupation of a baker does not fall within these general principles, and the array of authorities cited, I vote for reversal.
PARKER, Ch. J., GRAY and VANN, JJ., read for affirmance, and HAIGHT, J., concurs; O'BRIEN and BARTLETT, JJ., read for reversal, and MARTIN, J., concurs.
Judgment affirmed.