(dissenting):
I cannot concur with the conclusion which a majority of my brethren have reached in this case, and inasmuch as I deem it to be one of more than usual public interest, I shall briefly give the reasons for my dissent.
*86The contract which the plaintiff seeks to have specifically enforced is one made with the Albany penitentiary, on December 1, 1893. Under it the authorities of the penitentiary agree to furnish 125 of the • convicts confined therein, to work for the plaintiff under the piece-price system, so-called, for the term of three years' from that date, for rates and terms expressed therein. The contract also contained a covenant to the effect that, if the plaintiff should faithfully perform all the obligations therein contained on his part, and should give a written notice three.months prior to its exjjiration of his desire and intention to renew and extend such contract for a. ■ further period of three years, then, in that case, the plaintiff should have the right to so renew and extend the same, and the penitentiary, on its part, agree that it- would so' renew and extend such contract for the further term of three years from the time when it would otherwise expire, and to that end would, on demand of the plaintiff, execute all further writings or agreements needful and sufficient thereto.
The plaintiff elected to continue such contract, and in due season served the requisite.notice. The authorities concede that he faithfully performed all the obligations on his part., and that, under the terms of the contract, he is entitled to have it extended for the period of three years from December 1,1896 ; but they refuse to so extend or continue it and to execute the written agreement to extend therein provided for on their part, and base their refusal on the fact that on January 1,1895, an amendment to the Constitution of this State took effect, being a portion of section 29, article 3, which reads as follows: “ The Legislature shall, by law, provide for the occupation and employment of ■ prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories in the State; and on and after the first day of January in the year one thousand -eight. hundred and ninety-seven no person in any such prison, penitentiary, jail or reformatory shall be required or allowed to work while under sentence thereto at any trade, industry or occupation wherein or whereby his work, or the. product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation,” and that, by chapter 429 of the Laws, of 1896y the Legislature of this State passed a law to a similar effect.
It is manifest that the contract in question cannot be extended *87and operated after January 1, 1897, except in opposition to the prohibition contained in the -Constitution and statute above cited. And the single question presented here is whether such prohibition is operative as against that contract to extend.
The Albany penitentiary is, in relation to its business management, a private institution. It was organized under a special statute authorizing the board of supervisors of Albany county to provide a penitentiary - for the confinement of certain criminals sentenced in the courts of that county. By subsequent legislation it was made lawful for such board of supervisors to contract with any of the other counties in the State for the confinement of certain of their criminals for a stipulated compensation. And, by further legislation, the management of the institution was changed from the board of supervisors to a commission with like powers.
The expenses of the institution are borne by the county of Albany, and the income from the same belongs to such county.
The contract in question, therefore, is not a contract between an individual and the State, but one between individuals; and the plaintiff contends that the laws under which the defendants justify their refusal to continue such contract are a direct violation of article 1, section 10, of the Federal Constitution, in that they impair the obligation of the contract between him and the penitentiary, and that, therefore; so far as this contract is concerned, they are inoperative and void.
The business of farming out convict labor is not one common to all citizens. The State alone has the management and control of it. In the exercise of its duty to preserve the safety and good order of society, the State provides courts- for the conviction of those who offend against its laws, and prisons where they are confined and punished. As the number of such prisons and the multitude óf such prisoners have-increased, it has become a serious problem how to best care for their proper treatment and for the interests of the State at large. Theories concerning their employment have varied, and are likely to vary under the light of future experience. Evidently the State can be bound by no fixed rule, but must change its methods as its duty to the prisoners themselves and to the public seem to require.
This management of prisons and of prison labor is one of the *88departments of State government, and any laws enacted for tlie purpose of regulating such labor are but a part of the general system by which the State protects society against the criminal classes, and relieves'it, so far as may be, from the burden and expense of caring for them.
The Albany penitentiary, although a county institution, created and maintained as a county charge, and alone interested-in and liable for any contract which it might enter into, has been at all times subject to the regulations of the State in its treatment of the convicts which the State had authorized it to receive. It is one of the penal institutions of the State. Under a law of the State, it receives convicts from all parts of the State, and manifestly the management of the labor of such prisoners should be entirely under the control of the State. Nor is it claimed that the penitentiary has any power to hire out the labor of its prisoners, as a natural right. It derives its sole' authority to furnish such labor from the State. Were it to transact that business without such authority, every act therein would be unlawful,' and every contract made in relation thereto would be invalid. It would have no more right to farm out the labor of its prisoners than it would have to carry on a lottery, or do any other act prohibited by law.
The only authority upon which plaintiff relies is that contained in section 3 of chapter 382 of the Laws of 1889. And it becomes important,, therefore, to determine exactly what force and character are to be given to that section. In substance, it provides that the managing authorities, of any penitentiary are hereby authorized to conduct the labor of the prisoners therein respectively, under the public-account system or piece-price system, in like manner and subject to like restrictions as labor is authorized by the provisions of that act to be conducted in the State prisons.
One of the many restrictions contained in that statute makes it the duty of the Superintendent of State Prisons to determine what lines of productive labor shall be pursued in each prison, and requiring him to select diversified lines of industry, with reference to interfering as little as possible with the same lines of industry carried on by the citizens of this State. Another provides that the total number of prisoners employed at one time in manufacturing one kind of goods which are manufactured elsewhere in the State *89shall not exceed five per cent of the number of all persons within the State employed in manufacturing the same kind of goods.
By section 102 of that act it appears that the “ public-account system ” would not require contracts to be made with any third party, but that the “ piece-price system ” would require the intervention of a third party in carrying it on. It also, from that section", appears that just how far each institution may follow either of such systems is subject to the control and determination* of the Superintendent of State Prisons.
Evidently this section contains no contract between the State and the penitentiary that the system adopted by that statute will continue for any definite period. There is no provision in it giving the penitentiary any right to make a contract under it for any definite period, nor anything indicating any such intent. On the contrary, it is manifest from the restrictions and section 102, above cited, that the Superintendent of State Prisons had the authority, at any time, to make a rule which would render inoperative any time contract that the penitentiary could make. It is said that it cannot conduct the labor of its prisoners on the piece-price system unless it made a contract for a definite period. I do not discover anything in the record to that effect. And I do not know why we should assume that an arrangement could not be made with a third party to furnish materials and machinery under the piece-price system for such a term as the penitentiary should have authority to so use them.
But whether such a contract could or could not be made, there is nothing in the statute that authorizes any other. It brings all the penal institutions in the State under one rule, so far as the employment of convict labor is concerned, but no obligation is incurred, on the part of the State, to any of them that the then existing system shall he continued.
This section, then, under which the penitentiary claimed to act, was neither a charter nor a contract in any form with the State. It was but a license from the State to carry on a business which, without permission, it had no right to carry on — a license granted without consideration to the State, and which it was evident must necessarily be revoked, if the State should at any time deem it wise to change its policy with reference to the employment of convict labor! *90And such a revocation, as between the penitentiary and the State, would violate no obligation on the part of the. State.
When, therefore,' the penitentiary, on .December 1, 1893, contracted with the plaintiff that it would, on December 1, 1896, enter into a contract to furnish him for three years thereafter the labor of 125 convicts under the piece-price system, if he so desired, he knew that he was contracting with reference to a business which the penitentiary had no right to’carry on, save by the authority derived through the statute above mentioned, and he must., therefore, have, known that such undertaking on the part of the penitentiary could be carried out by it only in the event that its permission to do so. was continued by the State. ■ Such being the case, the contract in question was based entirely upon the continuation’of the license, and the revocation of that license, therefore, did not unlawfully impair its obligation. Ho obligation was created by such, contract unless, the license continued.
But if it be conceded that the section in question should be construed as authorizing the penitentiary to contract under the piece-price system for a definite period, the question remains whether such authority, or a contract made with reference to it, is a contract which is affected by the provisions of the Federal Constitution,, above referred to.
It is well settled that there are certain lines of State legislation with which the limitations of the Federal Constitution were not. intended to interfere. In the exercise of what is termed its police power, the State may legislate in such a manner as to injuriously interfere with property rights and impair the obligation of contracts, and the prohibitions of. the Federal Constitution will not be- operative against it. In Barbier v. Connolly (113 U. S. 27), in discussing such constitutional limitations, it was said that they are not .designed “ to interfere with the power, of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.”
It is claimed that the definition above cited extends such power, much too far; and it may be that legislation upon all those subjects would not prevail against the. limitations of the Constitution. But *91all agree that legislation necessary to preserve the public health and public morals is .clearly within that power. In Met. Board of Excise v. Barrie (34 N. Y. 657, 666) it is said : “ It is a bold assertion, at this day, that there is anything in the State or United States. Constitutions conflicting with or setting bounds upon the legislative discretion or action in directing how, when and where a trade shall be conducted in articles intimately.connected with the public morals, or public safety, or public prosperity; or, indeed, to prohibit and suppress such traffic altogether, if deemed essential to effect those great ends of good government.'’ The rule here given extends the right to so legislate, not only to public health and morals, but also, to public safety and ptiblic prosperity, and would seem to be an authoritative expression upon this subject so far as the courts of this State are concerned. I do not find any subsequent decisions in our own State which vary that rule. On the contrary, they extend rather than limit it. (People v. Budd (117 N. Y. 1.) The principle upon which this so-called police power is based may be found in the following language, used by Chief Justice Waite in Stone v. Mississippi (101 U. S. 814): “The power of governing is a trust committed by the People to the government, no part of which can be granted away. The People, in their sovereign capacity,, have established their agencies for the preservation of the public, health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must ‘ vary with varying circumstances.’ * * * -The contracts which the Constitution protects are those that relate to property rights, not governmental. It is not always easy to tell on which side of the line which separates, governmental from property rights a particular case is' to be put;, but in respect to lotteries there can be no difficulty. "x" * ■ * Certainly, the right to stop them is governmental, to be exercised at all times by those in power, at their discretion. Any one, therefore,, who accepts a lottery charter does so with the implied understanding that the People, in their sovereign cajiacity and through their properly-constituted agencies, may resume it at any time when the. *92public good shall require, and this whether it be paid for or not. All that one can get by such a charter is a suspensioh of certain governmental rights in his favor, subject to withdrawal at will. He has, in legal effect, nothing more than a license to continue on the terms named for the specified time, unless sooner abrogated by the sovereign power of the State.” Such is the principle upon which the Beer Co. Case (97 U. S. 25); the Fertilizing Co. Case (Id. 659), and the Butchers' Union Co. Case (111 id. 746) were decided. (See New Orleans Gas Co. v. Louisiana Light Co., 115 id. 650.)
The subject of prison management and the conduct of its convict labor by the State is a governmental right,, and it is a subject the management of which must of necessity “ vary with varying circumstances.” I do not claim that the .right to legislate so as to •affect or control competition in any particular business is within the police power of a State, nor does the fact that that idea was a leading one in effecting the prohibition contained in our State Constitution, at all affect this question. The method of employing State convicts, during the term of their imprisonment, is a question of prison discipline, including many other considerations than the effect it may have upon the labor interests of the State. And, as a mere matter of such discipline, it is obviously a subject of governmental ■concern. The necessity and propriety df the government being, at all times, at liberty to legislate concerning it, untrammeled by'prior legislation, is as strong as that it should- have such freedom to legislate concerning a lottery, a slaughter house, or the manufacture and sale of liquor. The principle which exempts from the operation, of the limitations in the Federal Constitution legislation in the latter ■cases is equally applicable in the former. In each of, these cases it is the exercise of a governmental function which every citizen must recognize, and concerning a business that all know is at all times subject to State control. The State assumes this control over matters affecting the public health and public morals because it is for the purpose of protecting and preserving them that governments are organized. And it has a similar control over the management of its prisons and the use and discipline of its convicts, because a prison ■system is one of the means by which another of its governmental ■ functions is carried on, viz., “ the protection of public and private *93rights.” . In tins Dartmouth College Case (4 Wheat. 518, 629), Chief Justice Marshall said : “ That the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to he so construed, may be admitted.” The prison system of the State is one of the institutions to which that proposition is applicable. And, in my judgment, whatever authority was conferred by the State upon the penitentiary, by the statute of 1889, above cited, or whatever contract was thereby made between them, from the very nature of the subject with which it dealt, it was accepted by the penitentiary with the implied understanding that the authority or right so given could be retaken by the State whenever, in the opinion of its proper agencies, the interests of" its prison system required.
, Although such business does not affect public health or public morals, it comes within the principle which controls these cases. It .is clearly a business which it is exclusively a governmental right," not only to control, but to conduct. And concerning it, therefore, one Legislature could no more control the power of its successors than it could in relation to a business affecting the public health or public morals.
I conclude, therefore, that the power of'the State to enact and repeal at its pleasure, such special laws as are designed to regulate the management of its prison discipline and the use of its prison labor is not affected by the limitations of the Federal Constitution, and that the plaintiff’s contract, being one concerning that subject, is no more controlled by those limitations than if it had been one concerning a lottery or the sale of liquor.
He is not, therefore, in my judgment, entitled to a specific performance of the covenant to extend contained in the contract of December 1, 1893.
Merwin, J., concurred.
Judgment upon submission directed for plaintiff for the specific performance of the contract. Order to be settled before Herrick, J.