The defendant was convicted of a misdemeanor under one of the subdivisions of section 384 of the Penal Code, in that he violated article eight, section 110, chapter 415 of the Laws of 1897, known as the Labor Law. The indictment charges that on the twenty-first day of December, 1899, he was arrested upon the complaint of one of his employees for violating the law inpermitting the employee to work in a bakery more than sixty hours in one week; that he was convicted in the City Court and fined twenty dollars, or in default thereof stand committed to the county jail for twenty days, and that he paid the fine; that after such conviction the defendant "wrongfully, unlawfully *Page 175 and knowingly, with intent on his part to violate the law,permitted and required" another employee named to work more than sixty hours in one week during the week commencing April 19th and ending April 26th, 1901, in the defendant's biscuit, bread and cake bakery and confectionery establishment, thereby committing a misdemeanor as a second offense, contrary to the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.
The defendant demurred to the indictment on two grounds: (1) That more than one crime was charged; and (2) that the facts stated do not constitute a crime. The local court overruled the demurrer, and no plea having been interposed by the defendant the allegations of the indictment were taken as true, under section 330 of the Code of Criminal Procedure, and judgment of conviction was entered and the defendant sentenced to pay a fine of fifty dollars, or stand committed to the county jail until the fine was paid, not to exceed fifty days. The judgment was affirmed at the Appellate Division by a divided court, and from this judgment the defendant has appealed to this court, and the appeal brings up for review all the questions raised by the demurrer to the indictment.
The statute upon which the judgment rests is to be found in the Penal Code (§ 384 l) and reads as follows: "Any person who violates or does not comply with * * * the provisions of article eight of the Labor Law, relating to bakeries and confectionery establishments, the employment of labor and the manufacture of flour or meal food products therein * * * is guilty of a misdemeanor and upon conviction shall be punished for a first offense by a fine of not less than twenty nor more than one hundred dollars; for a second offense by a fine of not less than fifty nor more than two hundred dollars, or by imprisonment for not more than thirty days, or by both such fine and imprisonment; for a third offense by a fine of not less than two hundred and fifty dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment." *Page 176
It will be seen that this section of the Penal Code does not specify the acts or omissions which are made crimes, nor does it in any appropriate terms define the crime at all, but refers for that purpose to another law. When we turn to article eight of the Labor Law, referred to above, we find that it contains six separate sections, commanding certain things and prohibiting certain things. The particular section which the indictment charges to have been violated by the defendant is the first section of the article, or section 110, and that reads as follows: "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." While this section of the Labor Law does forbid certain things, no penalty whatever is attached to a violation, and, therefore, in order to get a definition of the particular crime charged in the indictment we must examine two general statutes upon different subjects; that is to say, we must read the Penal Code for the penalty or the punishment, and we must read the Labor Law in order to ascertain the particular act or omission which constitutes the crime.
One of the grounds of the demurrer is that the indictment charges two crimes. It will be seen that two things or two acts or omissions have been forbidden by the statute; it forbids the master from either permitting or requiring the servant to work more than the time specified in the statute. Assuming for the present that the statute is valid, it makes it a crime for the master to permit the servant to work over the statutory time; and it also makes it a crime for him to require or compel the servant to so work. The two acts or omissions inhibited by the statute are essentially different in nature and character. It is one thing to permit the servant to work; it is quite another thing to compel or require it. Permitting him *Page 177 to work more than the ten hours might be intentional or involuntary. Compelling or requiring him to work would be a deliberate act on the part of the master in violation of the statute. In the one case the punishment might very well be nominal; in the other case it would necessarily have to be substantial, and, hence, it would seem that two acts or omissions so essentially different in nature and character and each constituting a crime in itself could not properly be united in the same charge, and in this view the objection that more than one crime is stated in the indictment is good.
But the objection was also made that the acts or omissions stated in the indictment do not constitute a crime, and this objection raises the question as to the validity of the statute and is of much more importance than the form or substance of the indictment. It will be seen from an examination of the law that there is no prohibition against the act of the servant himself in working longer than the statutory time. He may work as many hours as he likes during the day and he violates no law and commits no offense whatever. So the broad question is whether a statute which makes it a crime for the master to permit his servant to do what the servant has a perfect right to do can be a valid law. No restrictions are imposed upon the servant with respect to the hours of labor or otherwise. As already remarked, he has a perfect right to work as many hours in a day or week as he may want to, but the master must see to it, at the peril of committing a crime, that his servants are driven out of the building the moment the clock registers the requisite ten hours, and that, too, without regard to the conditions and circumstances affecting the business or the interests of the master. It is a crime for the master to require or permit his servant to work over the statutory time, no matter how willing or even desirous the servant may be to earn extra compensation for overwork. The master is forbidden to contract with his servant for longer hours and extra pay, no matter what may be the wants or necessities of the business, or the judgment or will of the servant with respect to such a contract. It is obviously one *Page 178 of those paternal laws, enacted doubtless with the best intentions, but which in its operation must inevitably put enmity and strife between master and servant. They are not left free to make their own bargains in their own way, but their mutual interests are governed by statute.
The sweeping character of the legislation in question may be illustrated by a reference to the last section of the article of the Labor Law referred to in the indictment; that is to say, to section 115. It is there enacted as follows: "If, in the opinion of the factory inspector, alterations are required in or upon premises occupied and used as bakeries, in order to comply with the provisions of this article, a written notice shall be served by him upon the owner, 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." There is no penalty for a failure to observe this law in the law itself, but when we look into the amendments of the Penal Code we find that the owner of a valuable building used as a bakery may be at the mercy of the factory inspector, since, if it happens that the rooms are less than eight feet in height, he must tear it down and rebuild it, if the factory inspector so requires it, or be subject to a criminal prosecution, fine and imprisonment down to the third offense, and possibly so long as the orders of the inspector are not carried out. It is quite inconceivable that the legislature understood, when enacting the amendments to the Code by reference to another law, that its action would have such a sweeping effect or confer such arbitrary powers upon a ministerial officer that affected the liberty and the property of the individual.
It is contended in behalf of the defendant that the law under which he was convicted violates section one of article fourteen of the Constitution of the United States, which prohibits any state from making or enforcing any law which shall deny to any person within its jurisdiction the equal protection of the law, and those provisions of the Constitution of this state which enact that no member of this state shall be *Page 179 disfranchised or deprived of any of the rights or privileges, secured to any citizen thereof, unless by the law of the land and the judgment of his peers, nor be deprived of life, liberty or property without due process of law. (Const. art. 1, §§ 1, 6.) The words "law of the land" do not mean an act of the legislature passed for the very purpose of working the wrong. The meaning is that no person shall be deprived of any of the rights or privileges secured to him by the Constitution, unless the matter shall be adjudged against him upon a trial had according to law. It cannot be done by mere legislation. (Taylor v. Porter, 4 Hill, 140; White v. White, 5 Barb. 474; People v.Toynbee, 20 Barb. 198; Wynehamer v. People, 13 N.Y. 378;People ex rel. Warren v. Beck, 144 N.Y. 237; People ex rel.Rodgers v. Coler, 166 N.Y. 1; People v. Orange County RoadConst. Co., 175 N.Y. 84.) The doctrine of these cases condemns the legislation in question as an invasion of the rights, liberties and property of the citizen. The three cases last cited grew out of the same law that is violated in the case at bar, or similar laws, and they cannot be distinguished from it in principle.
The Labor Law excludes from its regulations and restrictions all persons engaged in farm work or domestic service (Art. 1, § 3) and, hence, a very large proportion of the people of the state who labor for a living are not affected by it at all. Why this large class of wage earners who toil for a livelihood are excluded from the benefits of the statute, and those who employ them exempt from its burdens and restrictions, it is difficult to conceive. The farmers and that large class of people both in the city and in the country who employ domestics may require them to work any number of hours without violating any law. They commit no crime by requiring their servants to work from daylight till after dark or even into the night. The section of the law upon which the conviction in this case is based is aimed at a very small class of persons, namely, those who conduct "a biscuit, bread or cake bakery or confectionery establishment." Work of the same general character is exacted from cooks and domestic servants in practically *Page 180 all the private houses in the land and to a great extent in hotels, restaurants and other public places. It would be absurd to say that all, or even the greater part of the biscuit, bread, cake and confectionery consumed in this state comes from what are called bakeries. The law does not even apply to bakers in the small towns and villages who do their own work. It applies only to bakers who find it necessary to employ labor, and they alone are subjected to criminal prosecution in case they permit the servant to work more than ten hours in a day, even though the servant is willing and is given extra compensation. The baker is forbidden, under the penalty of fine and imprisonment, to contract or agree with his servant upon the hours of labor in such way as would be mutually beneficial, but his business is practically regulated by statute. If for any reason he suffers or permits his servant to work an additional half-hour beyond the statutory time his liberty and his property are put at the mercy of the servant, who may procure him to be arrested and imprisoned. It does not appear from the record in this case, or in any other way, that there is anything in the business or vocation of a baker that would authorize the legislature to impose such criminal penalties upon him for permitting his servant to work more than ten hours in the day, or to restrict his freedom of contract, which is a right enjoyed by all other employers of labor. The guaranties of the Constitution may be invaded without any physical interference with the person or property of the citizen. He is deprived of his property within the meaning of the Constitution when arbitrary and unnecessary restrictions are imposed upon his conduct of any lawful business, and when he is deprived of the right to make contracts for the transaction thereof. Liberty, in its broad sense, means the right, not only of freedom from actual restraint of the person, but the right of such use of his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel those rights or restrict his freedom of action, or his choice of *Page 181 methods in the transaction of his lawful business, are infringements upon his fundamental right of liberty, and are void. (Matter of Jacobs, 98 N.Y. 98.) They cannot and should not escape the scrutiny of the courts merely because they are made to assume, by argument or otherwise, the guise of police regulations.
The statute in question deprives the defendant of the equal protection of the law, since it enacts that certain acts or omissions on his part concerning the conduct of his business and his relations to his own servants are crimes and punished criminally, which, as to all the rest of the community not within the terms of this law, are entirely innocent. The very small fraction of the community who happen to conduct bakeries, or confectionery establishments, are prohibited, under pain of fine and imprisonment, from regulating the conduct of their own business by contracts or mutual agreements with their employees, whereas all the rest of the community who find it necessary to employ labor in private business may do so. Class legislation of this character which discriminates in favor of one person and against another is forbidden by the Constitution of the United States, if not by the Constitution of the state; and so it has been held by the Supreme Court of the United States and by this court. (Gulf, C. S.F.R. Co. v. Ellis, 165 U.S. 150;Cotting v. Kansas City S.Y. Co., 183 U.S. 79; Connolly v.U.S.P. Co., 184 U.S. 540; People v. Orange County RoadConstr. Co., 175 N.Y. 87, 90.) It is, I think, quite obvious that the legislation in question is, upon its face, in conflict with the constitutional guaranties referred to, unless it can be brought within the scope of the police power. That is the only ground upon which the statute is defended by the learned district attorney. He contends that it is a health law passed for the purpose of protecting the public health, or at least the health of those persons employed in bakeries. The argument is that the defendant was forbidden by the statute to permit his workmen to work more than ten hours in a day, to the end that his customers might have wholesome bread, biscuit and confectionery, whereas if they *Page 182 were permitted to work ten and a half hours in the day the product of the bakery would be unwholesome or dangerous to health. What possible relation or connection the number of hours that the workmen are permitted to work in the bakery has, or can have, to the healthful quality of the bread made there is quite impossible to conceive. The baker in the small towns, or even in the large towns, who does his own work and does not employ labor, may work day or night without fear of molestation, since no one thought it necessary to protect the public against his unwholesome product. It has already been observed that the law does not impose any penalties or restrictions upon the workman himself for working too much, and if the purpose was to protect his health against his own avarice, or his own misdirected energy, it is quite remarkable that it did not at least forbid him from working more than ten hours in a day.
The contention that the defendant was convicted for violating a health law is, at best I think, but a mere disguise that is not sufficient to save the statute from condemnation. There is nothing on the face of the law nor in its manifest operation to show that it has any relation to the public health. It is no part of the Health Law but a part of a general statute known as the Labor Law. The execution of it was not intrusted to any of the health authorities, but to the factory inspector, which shows what its real scope and purpose was. The factory inspector is not the officer charged with the enforcement of health laws. The legislature classified it as a labor law, and it is that and nothing else. Laws which encroach upon the personal or property rights of the citizen, as guaranteed by the Constitution, are generally defended upon the ground that they are police regulations; but the courts have prescribed a test by means of which their true character and purpose may be known. The rule is that the court must be able to say judicially that the statute in question is a health law, and has some appropriate relation to the promotion or protection of health. It will not be deceived or misled by mere names or pretenses. The cases are numerous in which the *Page 183 courts have condemned statutes as invasions of the rights secured to the citizen by the Constitution, though enacted or sought to be upheld under the guise of health laws or other police regulations. They all arrive at the same result, and that is that the legislature may not under the guise of a statute to protect against some wrong, real or imaginary, arbitrarily strike down private rights and invade personal freedom or confiscate private property. The police power must be exercised within its appropriate sphere and by appropriate methods. (Matter ofJacobs, supra; People v. Marx, 99 N.Y. 377; People v.Arensberg, 103 N.Y. 388; People v. Gillson, 109 N.Y. 389;Colon v. Lisk, 153 N.Y. 188; People ex rel. Rodgers v.Coler, 166 N.Y. 1; People v. Buffalo Fish Co., 164 N.Y. 101,104; People v. Hawkins, 157 N.Y. 1.) It will not do to say that the legislature in enacting the statute in question may have thought that it was a health law, or had some relation to health. The action of the legislature, or its views or reasons for the passage of the law, does not conclude the courts, but they must determine for themselves whether in any given case the legislation which is claimed to be an exercise of the police power is really what it is claimed to be. Every labor law, however stringent and arbitrary, could just as well be upheld upon the ground that it is a health law; but in all the discussions that have been had in the courts for many years concerning the validity of legislation of this character, there are to be found but very few cases where it was even claimed that the statute was enacted for the purpose of preserving or promoting health, or that it had any relation whatever to that subject. When it is manifest, as it is in this case, that the law has no relation whatever to the subject of health, and that its real object and purpose was to regulate the hours of labor between master and servant in a business which is private and not dangerous to morals, or to health, freedom to contract with each other, defining their mutual obligations, cannot be prohibited without violating the fundamental law.
The defendant was charged in the indictment with the violation of a single independent section of article eight of the *Page 184 Labor Law, namely, the first section, which relates solely to the hours within which the master may permit the servant to work. The validity of that section is not affected or helped out by the character of some of the other sections of the article, since part of a statute may be perfectly valid and another part in conflict with the Constitution. It is quite possible that some parts of the other five sections can be regarded as prescribing sanitary regulations, such as ventilation, plumbing, fire escapes and the like, but such regulations cannot save the first section which deals exclusively with the time within which the servant is to work and virtually makes a contract to be observed by the master alone, leaving the servant just as free as if the law had never been passed. A section, or sections, of a statute may be good that requires and prescribes sanitary regulations binding upon the landlord who owns and lets tenement houses in cities, but this would not save another section of the statute that prescribes the maximum rent that he may demand and receive from his tenants. It is even quite possible that a law might be held good that enjoins upon farmers or persons employing domestic help the duty of preserving their health against infectious diseases by reasonable and proper safeguards, such as ventilation of the rooms where they sleep and the like, but this would not save a separate section of the law prescribing the compensation that the master is required to pay to the servant. So that the section of the Labor Law with which we are now concerned can borrow no strength from its association with other sections of the statute that may be good. The single section of the Labor Law that we are now dealing with must stand or fall upon its own intrinsic character and can receive no support from the company in which it is found. If that section had also provided that every employee of a baker would be guilty of a misdemeanor if he neglected or refused to faithfully serve his master for ten full hours in each day no one I apprehend would then claim that it was a health law. And yet every argument and every authority cited in defense of the section in its present form would be just as good then as they are *Page 185 now. The section would then be just as much of a health law as it is now.
It cannot be repeated too often that if the single section of the law with which we are now concerned and which is the sole basis of the criminal charge in this case, stood alone, the argument that it is a health law and within the police power would not have even a color of reason or authority to support it. But what the learned district attorney urges upon us is that since the section is found in the article associated with other sections prescribing sanitary regulations, we must assume that the legislators, for some unexpressed reason sufficient to them, reached the conclusion that a baker ought not to be permitted or required to work on an average of more than ten hours in a day. Of course this reasoning is without force and does not meet the difficulty. The question is not what the unexpressed reason is that moved the lawmakers, so long as it is impossible for any court to discover that reason or any reason to bring the enactment within the scope of the police power. It is always open to the courts to inquire and determine whether a statute is in fact fairly within the police power. That principle is found imbedded in all the cases on that subject. If it were otherwise and the real view of the legislature is made the dominant idea, then the court would be deprived of all power to declare any law void provided the legislature called it an exercise of the police power, or some one contended that it was supposed to be such upon some theory that the public interest required its enactment. There would be no limit then to the police power and every statute however arbitrary and in violation of the constitutional safeguards for the protection of life, liberty or property could be upheld on the plea that the lawmakers called it a health law or intended it as such, or thought it was necessary for that purpose. It is incumbent upon the courts to see to it that such laws are really what they profess to be, or if claimed to be police regulations that they are such within the reasonable scope of that power.
The bakers' vocation is one that has existed practically in *Page 186 all ages and in all countries. Wherever cereals are converted into bread, the standard food of the human race, except possibly as to those races that are considered savage or semi-savage, the making of bread is one of the most common employments. The process is familiar to the domestics in every public or private house in the land as well as in the places called bakeries, where bread is made for sale to the public. It has never been supposed that it was a trade or vocation that was or might be dangerous to health, morals or good order, or that there was anything about it to justify legislation restricting the right of the master and servant to make their own contracts, express or implied, with respect to hours of work or the terms of employment. There is nothing in the record before us from which it can be inferred that there was any ground for the passage of the statute as a police regulation for the protection of health, morals or good order, and, hence, it cannot be upheld as an exercise of the police power. It is a plain discrimination against a limited class of people who happen to be obliged to employ labor in the manufacture of bread, biscuit or confectionery in those places called bakeries. This relatively small class are restricted by the statute to the regulations there prescribed with respect to the hours of labor by their employees and are prohibited from agreeing with them as to the time they are to work even though extra pay should be given for overwork, a right which the law gives to all other persons employing labor. If the legislature can do all this then the right to enact what wages the servant shall receive per day or per hour must necessarily follow as an inevitable conclusion. A statute fixing the wages of the servant at such a sum as to enable him to live more comfortably could be defended as a health law by the same argument and authority adduced in support of the section of the present law, the violation of which is the only crime charged.
It is doubtless within the power of the legislature to enact that a ton of coal or a bushel of wheat shall contain a certain number of pounds; but it cannot prohibit parties from entering into contracts to the effect that a ton of coal or a bushel of *Page 187 wheat shall contain more or less than the quantity prescribed by statute. When there is no contract regulating the matter, and there is a dispute between the parties as to what constitutes a ton of coal or a bushel of wheat, the statute would doubtless be available to settle the controversy. So in the case of the master and servant with respect to the number of hours that shall constitute a day's work. The legislature may no doubt define what is or shall constitute a day's work, but it cannot prohibit the parties from making agreements for themselves, and then custom or contract, express or implied, would control the mutual obligations of the parties.
The facts stated in the indictment do not constitute a crime, and, therefore, the demurrer must be sustained, the judgment of conviction reversed and the defendant discharged.