(concurring):
The new constitutional provision of the State'is no doubt valid as to future contracts for labor, since no provision of the Federal Constitution is contravened by applying the State provision to future, cases.
“No State shall * * * pass any * *■ * law impairing the obligation of contracts.” (U. S. Const. art. 1, § 10.)
' This provision inhibits such laws ordained by a State Constitution as well as enacted by the legislative body. (Railroad Co. v. Rock, 4 Wall. 177, 181; Railroad Co. v. McClure, 10 id. 511, 515; *81Pacific R. R. Co. v. Maguire, 20 id. 36; White v. Hart, 13 id. 646; Marsh v. Burroughs, 1 Wood, 463, 472; New Orleans Gas Co. v. La. Light Co., 115 U. S. 650, 672; Osborn v. Nicholson, 13 Wall. 654; Fisk v. Jefferson Police Jury, 116 U. S. 131.)
By 1he Constitution of the United States specified powers are granted to the Union; certain specified powers are prohibited to the States, and the powers not granted to the Union or prohibited by it to the States are reserved to the States. (U. S. Const. 10th amendt.) Hence, it follows that the police powers reserved to the States are those which do not conflict with the powers granted to the Union, or are not prohibited in terms or by necessary implication to the State. (Brennan v. Titusville, 153 U. S. 289, and cases cited at page 299.)
Hence, it also follows that a contract which the contracting par-' ties had full power to make, when made, and as made, cannot be impaired in its obligation by any State law, whether purporting to be an exercise of its police powers or not, since the power to do so is by the constitutional provision of the United States first above quoted expressly prohibited to the States. (Id.)
The. questions to be considered are :
1. Is the instrument a contract ?
2. Did the defendants have the power to make it, as they made it ?
And involved in the last question —
3. Do the reserved police powers of the State authorize it to terminate a contract for prison labor entered into before the State concluded to change its policy ?
(1) The terms of the instrument set forth as a contract are those of a contract, and all the requisites of a contract are present, and in this, as well as in other respects, this instrument is unlike a license to sell liquor, and hence Metropolitan Board of Excise v. Barrie (34 N. Y. 657); People ex rel. Presmeyer v. Commissioners of Police (59 id. 92), and People v. Meyers (95 id. 223) do not apply, Uor is it like a revocation of a charter to authorize gambling by-lottery as in Stone v. Mississippi (101 U. S. 814), since the State in that case had no fight to bargain away, even temporarily, its power to suppress gambling. Clearly the instrument is not a mere license, like the privilege to sell liquor, to maintain a lottery, to keep a *82pawnbrokers’ shop or run a public' hack, to be an auctioneer, or pedler, or the like.
I have no doubt that it is a contract. The statute under which it was made authorized the employment of prisoners- under the “ piece-price system,” and to do that a contract was needed.
Title 2 of chapter 3 of part 4 of the Revised Statutes, relating to State prisons and for other' purposes connected therewith, as amended by chapter 382 of the Laws of 1889, and which was in force at the time of the execution of the contract in question, December 1, 1893, and Under and pursuant to which law the commissioners of the Albany penitentiary, acting for and under their authority and direction, executed said contract, provides as follows: “ The system of productive labor in each of said prisons shall be either the public-account system or what is known as the piece-price system, or partly one or partly the. other of such systems, ás the Superintendent of State Prisons shall determine. By the public-account system is meant the system by which the State furnishes machinery and material for the labor of the prisoners, and markets the jiroducts of such labor thereon. By the piece-price system is meant the system by which the State receives payment for the products of the labor of the prisoners upon materials and machinery furnished by the person making such payment, or furnished partly by such person and partly by the State.” (Chap. 382, Laws 1889, § 1 [old section, as changed, 102], Session Laws, p. 526.)
“ Whenever the amount appropriated by the State therefor shall be insufficient to conduct or continue such productive labor under the public-account system, it shall be the duty of the Superintendent of State Prisons to use his best endeavors to cause such productive labor to be conducted under the piece-price system.” (Id. § 1 [old section, as changed, § 103].)
The defendants had -the like powers.
If there was any license it was not created by the agreement;' it was not a license to the plaintiff. There ■ is more semblance of a license given to the defendants by the statutes which permitted them to make this contract, But whether license, mandate or authority, whatever was validly done under it cannot be revoked by a subsequent repeal of the statute or revocation of the authority.
The defendants had labor to sell or dispose of, and they sought a *83customer and found the plaintiff, and sold or disposed of it to him. They have no authority to make any new like contracts, but this one remains.
(2) Did the defendants have the power to make the contract as they made it, that, is, for a term of years, with the privilege to the plaintiff of a further term at his election ?
It is not claimed that the provisions of the contract are contrary to the usual or reasonable course of business; the defendants kept within their powers as the statutes conferred them.
The only ground upon which it is alleged that they exceeded their powers is that they did not have all the powers the statute expressed, since the State had no right to confer upon them the power to make such a contract except subject to the power of the State to revoke or terminate it at.its pleasure.
(3) Is this so ?
The question between plaintiff and defendants should not be confounded with the question between the prisoners and the State. One respects the validity and obligation of a contract; the other is mere matter of punitory regulation. The defendants could make a contract with the plaintiff respecting the labor of the prisoners, but could make none witli the prisoners.
The police power, which the State cannot bargain away, respects the health, morals, good order and safety of persons and property within the State. By what different regulations it permits them to be safeguarded the courts do not attempt to say except as the cases arise. They are careful to detect violations of constitutional safeguards masquerading in the garb of police powers.
In Stone v. Mississippi (supra) the court sustained the repeal of a charter authorizing a lottery company to do its business for twenty-five years upon payment to the State of certain sums of money. The court said that if there had been a contract in the charter Avhich the State had the right to make, it could not impair it, but the alleged contract was for a gambling privilege, and the State had not the right to bargain a-Avay the police power of the State to suppress gambling.
It cannot bargain away its power to regulate or prohibit the sale of intoxicating liquor; or its power to procure a supply of pure and Avholesome water; or to suppress or regulate occupations or *84practices tending to impair the public health, or corrupt the public morals, or engender pauperism and crime. Why not ? Because it is its duty' to retain unimpaired the full freedom of their proper exercise. - -' -
It is obvious that the puqiose of the State was to prevent the competition of convict labor with free labor, a purpose which, when its effects upon the prisoners are more fully shown by the results, good morals may possibly condemn.
The police powers of the State are reserved to it to promote its best welfare. They have hitherto involved matters of high concern to that welfare. To respect this contract and perform its obligations in good faith contravenes no public duty, but, on the contrary, harmonizes with a just sense of good faith and good morals. It would be unfortunate if the shield of good morals should be converted into the sword to cut them down.
This contract respects, labor — not liquor ; not lottery tickets ; not any franchise or governmental privilege or exemption.
As said in Powell v. Pennsylvania (127 U. S. 686): “ If the incompatibility of the Constitution and the statute is clear or palpable, the courts must give_ effect to the former. And such would be the duty of the court if the State Legislature, under the pretence of guarding the public health, the public morals, or the public safety, should invade the rights of life, liberty or property, or other rights secured by the supreme law' of the land.”
The subject-matter of this contract is the labor of prisoners undergoing sentence for crime. Involuntary servitude for the punishment of crime is permissible. (U. S. Const. 13th amendt.) Before the recent enactments the State could itself provide for the employment of the prisoners, or let, or-permit to be let, their services to contractors. Their employment is still enjoined upon the State; the contract system is prohibited. Thus the manner, but not the matter, of penal servitude is affected; a tnere narrowing of the employers of such labor, but no denial of the necessity, humanity or propriety of compelling or employing such labor. The contract system was under such superintendence of the public authorities as was necessary for its humane administration.
While it may be conceded that the State can, in the exercise of its police powers, change its policy -from mere motives of partisan, as' *85distinguished from political advantage, the authorities are ample to the effect that it must do so subject to existing contract rights. (New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672; White v. Hart, 13 Wall. 646; Osborn v. Nicholson, Id. 654; Von Hoffman v. City of Quincy, 4 id. 552; New Orleans Water-Works Co. v. Rivers, 115 U. S. 674; Louisville Gas Co. v. Citizens’ Gas Co., Id. 683; St. Tammany Water Works v. New Orleans Water Works, 120 id. 64.)
Contracts made by legislative enactments to exempt certain property from taxation, founded upon sufficient consideration, if explicit in declaring such exemption, cannot be impaired by subsequent legislative or constitutional enactment. (New Orleans v. Houston, 119 U. S. 265; Wilmington R. R. v. Reid, 13 Wall. 264; State Bank of Ohio v. Knoop, 16 How. 369.) If the consideration is sufficient, the equivalent of taxation is retained, and public interests are not sacrificed.
But it is said that a State like an individual may refuse to perform its contract, and elect to respond in damages for its breach. (Lord v. Thomas, 64 N. Y. 107.) In the case before us the State is not a contracting party. ' The county of Albany is the real party in interest represented by the defendants. The county has not elected to break its contract, except as it is held up and disabled by the State. It is willing to perform it; it is to its advantage to do so, and if its obligations have not been superseded by State enactment, it' is ready to perform as agreed, and in such case defendants ask us to decree performance. It would be unjust to the county to . make it respond in damages for a breach of its contract under such circumstances. The Lord case (supra) does not apply.
Moreover, no law should be construed retrospectively in the ■absence of words declaring or plainly implying its retrospective operation. (Auffm’ordt v. Rasin, 102 U. S. 620.)
Judgment should be directed for the plaintiff for the specific performance of the contract.