People v. . Lochner

I concur in the result reached by the chief judge, for the following reasons:

The power of the legislature to pass what it may consider "health laws" is not unlimited, but is bounded by the duty of the courts to determine whether the act has a fair, just and reasonable relation to the general welfare. (Matter of Jacobs,98 N.Y. 98, 108; People v. Gillson, 109 N.Y. 389, 401;People v. Havnor, 149 N.Y. 195, 200.)

As was said by the court in the Gillson case: "Under an exercise of the police power the enactment must have some relation to the comfort, the safety, or the welfare of society, and it must not be in conflict with the Constitution. The law will not allow the rights of property to be invaded under the guise of a police regulation for the protection of health, when it is manifest that such is not the object and purpose of the regulation. * * * It is generally for the legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety and if its measures are calculated, intended, convenient or appropriate to accomplish such ends, the exercise of its discretion is not the subject of judicial review."

We have before us simply that part of the Labor Law which regulates the hours of labor in bakeries and confectionery establishments by limiting them to not exceeding sixty per week and ten per day, "unless for the purpose of making a shorter work day on the last day of the week."

The draftsman of this statute apparently used as a model "The Bakehouse Regulation Act" passed by the English Parliament in 1863, but he went far beyond that pattern in limiting the hours of labor, for the New York statute applies to all employees in bakeries, while the English act makes no regulation of hours per day or week, but simply prohibits the employment of persons under eighteen years of age between nine at night and five in the morning. (26-27 Victoria, cap. 40.) Both acts contain similar provisions to secure cleanliness and ventilation of the rooms used to carry on the business, as well as the separation of sleeping apartments therefrom, none of which are now called in question.

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

Vital statistics show that those vocations which require persons to remain for long periods of time in a confined and heated atmosphere filled with some foreign substance, which is inhaled into the lungs, are injurious to health and tend to shorten life. Bakers and confectioners, who, during working hours, constantly breathe air filled with the finest dust from flour and sugar, have a tendency to consumption, the most terrible scourge known to modern civilization and resulting in more deaths than any other disease. (1 People's Cyc. 479; Mulhall's Dict. Statistics, 193 and 683.)

Thus in the article on phthisis in volume 18 of the last edition of the Encyclopædia Britannica it is said: "Occupations which necessitate the inhalation of irritating particles, as in the case of stone masons, needle grinders, workers in minerals, in cotton, flour, straw, c., are especially hurtful, chiefly from the mechanical effects upon the delicate pulmonary tissues of the matter inhaled. No less prejudicial are occupations carried on in a heated and close atmosphere, as is often the case with compositors, goldbeaters, semptresses, etc."

So in Alden's Encyclopædia, vol. 9, title consumption, the following occurs: "Often the workshops of tailors, printers, bakers and other businesses carried on in close, ill-ventilated apartments by large numbers of working people are nurseries of consumption."

We quote from a few more out of many authorities to the same effect. "It is certain that much might be done to improve the public health in this respect by more attention on the part of employers of labor to the comfort and habits of those who are, in more senses than one, their `hands' and the sources of their prosperity. A certain kind of improvement has, indeed, been already effected by the improved living of the working classes during the last twenty years. Still it is well known and proved by careful inquiries that the workshops of tailors, printers, bakers and other businesses carried on in close, ill-ventilated apartments, by large numbers of workmen are, in a very aggravated sense, nurseries of consumption. * * * The cutters and needle-grinders of Sheffield appear to owe their notoriously short lives to consumption brought on by the inhalation of metallic particles in the close and stifling atmosphere of their workshops. * * * Even admitting, therefore, that the causes of consumption may be in part practically irremovable, there seems no reason to doubt that very much might be done to diminish its prevalence, as well as to arrest its course when already formed, by due attention to the comfort of the laboring population, both in their dwellings and in the pursuit of their occupations." (4 International Cyclopædia, 286.)

"Particular occupations predispose (to consumption), especially such as occasion constant inhalation of small particles." (2 Johnson Cyclopædia, 488.)

"Thus tailors, seamstresses and similar workers are especially prone to the disease. More especially is this true of occupations whose performance necessitates the inhalation of dust particles. * * * The dust particles act as irritants of the fine structures which line the air passages and vessels, inducing chronic changes, which, in turn, are liable to lead to consumption." (3 Chambers Encyclopædia, 438.)

"The bacillus of tuberculosis finds, indeed, the most favorable conditions for its existence in the squalor of congested slums, in the foul atmosphere of dusty workshops, in close courts, alleys, etc." (70 Fortnightly Review, 308.)

"A very large number of the most efficient workmen employed in quarries, metal works, cotton and wool manufactories, print trades and many other occupations exposing them to bad air and dust fall victims to this infection." (194 Edinburgh Review, 444.)

"Since statistics still show that the mortality from Phthisis in people who follow certain trades is much greater than in others, there can be no doubt of the causal relationship between occupation and pulmonary disease and of dust being the causacawsans. * * * In 1866 it was demonstrated that * * * two kinds of occupation had long been recognized as hurtful, viz.: 1, those that give rise to mechanical or chemical irritation of the air passages by dust, grit or fluff being diffused through the atmosphere; 2, those in which the operatives are exposed to abrupt changes of temperature." (The Lancet, vol. 165, p. 1345.)

"Living in a close atmosphere and in a high temperature, bakers are subject to lung diseases, more especially phthisis." (5 Reference Handbook of Medical Science, 276.)

"Those engaged in carding of cotton and workers in flax, hemp, tobacco and flour, and chaff cutters suffer in the same manner, but to a less degree than such as are compelled to inhale more decidedly irritating particles." (Fowler Godlee's Diseases of the Lungs, 272.)

"Dusty occupations, as in the case of millers, bakers, knifegrinders, stone-masons, and the like, are fraught with special dangers to vulnerable persons." (5 Allbutt's System of Medicine, 229.)

"The inhalation of impure air in occupations associated with a very dusty atmosphere renders the lungs less capable of resisting infection." (Osler's Practice of Medicine 269.)

"Dusty occupations make people prone to disease. The statistics of Berlin as to street-cleaners, cabmen, coal workers and miners show this." (35 Journal Am. Med. Assn. 1028.) "The question as to what business had best be carried on by tuberculosis patients is treated of by Ambler. * * * The butchers, he thinks, generally possess an immunity, at least that has been his experience, but bakers are particularly susceptible." (37 id. 1068.)

"Other vegetable dusts of less potency, which are little less injurious in results than mineral dusts, are flour and starch, which seem to operate rather by obstruction than by irritation. Bakers, confectioners and pastry cooks represent a body of tradesmen exhibiting hygienic conditions of a common character, the principal of which are exposure to heat from the ovens, dust, steam, variations of temperature, in too many instances unhealthy bakehouses, fatiguing movements necessitated where kneading is done by hand, disagreeable emanations from materials used, prolonged hours of work, more or less night work, and loss of rest. To these evils of their trade the working bakers often add intemperance and irregular living. My own senses also make me conscious of a disagreeable, sickly smell much like that of heated bones, superadded to the steam and other fumes. There are, in brief, many incidents in the occupation of baking which reduce vital energy, predispose to lung affections and shorten life." (Arlige Diseases of Occupations, 255.)

The occupations of ropemakers, carpetmakers, bakers, etc., "being essentially dust-producing processes, they one and all induce among workers excessive suffering from pulmonary affections. Although the mortality of these workers from phthisis and other lung diseases is considerably below that of metal workers, nevertheless it is in every case inordinately high, exceeding the mortality of agriculturists by proportions varying from 77 to 120 per cent." (Latham's Register-General's Report, 148.)

According to the data presented by Dr. C. Moeller in his work on Hygiene of the Baker Industry (p. 295): "of bakers dying between the ages of 45 and 65, twenty-five per cent died from chronic bronchitis or related diseases." He points out "the persistency of the flour dust and starchy particles in the bronchial tubes, and even in the lungs" by quoting a medical authority to the effect "that even two and a half weeks after leaving the employment, starchy particles and other evidences of flour dust had been found in the expectoration of bakers examined."

According to the tables of comparative morality in the Federal census of 1900, the number of deaths among bakers and confectioners was three and two-tenths per cent greater than the average of general industrial occupations. These tables are somewhat favorable to bakers between the ages of 15 and 44, but are unfavorable to them between the ages of 45 and over, the average being as stated above. (See, also, 1 Parke's Manual of Practical Hygiene, 133; 62 Medical Record, 334; Medical Examiner and Practitioner, Nov. 1902, tit. Occupations; Id. July, 1901, tit. Occupation as affecting the Death Rate.)

The heaviest death rate in England falls to cabdrivers, painters, printers, tailors and bakers. (Mulhall's Dictionary of Statistics, 195.) Statistics relating to thirty-nine trades in England and Wales show that more bakers have consumption than the average of those engaged in other vocations, and the table of male mortality in Paris shows higher death rate among bakers than in all but five out of twenty of the common callings of life. (Id. 688.)

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

I vote for affirmance.