I did not agree to the conclusion reached by this court in the case of People ex rel. Rodgers v. Coler (166 N.Y. 1), but after that decision I regard it my duty to yield obedience thereto and to follow it in cases involving the question then raised and disposed of. But, to my mind, very different questions are now presented. That case involved the constitutionality of the provision of the Labor Law requiring contractors upon public works to pay their employees the prevailing rate of wages. The case now before us calls for a determination as to whether the provision of the Labor Law is constitutional which prohibits contractors upon such works from requiring more than eight hours of labor in a day from their employees. The power of the legislature to enact laws based upon considerations of public policy or for the protection and preservation of the health of the people is beyond question. It may limit the number of hours that a person shall be required to work in underground mines, smelters or institutions for the refining or reduction of ores and metals. It may limit the period of service where the person performing the labor is required to work beneath the surface of the earth or in other places where the operative is deprived of fresh air and sunlight and is frequently subjected to foul atmosphere, a very high or low temperature, or to the influence of noxious gases. It may also limit the hours of labor that shall be performed by employees in bakeries. (People v. Lochner,177 N.Y. 145; Holden v. Hardy, 169 U.S. 366.) The requiring of a person to work twenty hours out of twenty-four, or of twelve hours per day in the digging of a deep sewer, or in the sweeping and cleaning of a street in extremely hot or cold weather, or in the lifting of heavy stones, or other work requiring violent exercise of the body and the muscles thereof, may impair the health of the individual. It might not be deemed wise public policy to permit a contractor upon public works to require ten or twelve hours service in a day while a municipality for similar services could exact but eight hours. The state, in enacting laws, must act in accordance *Page 438 with the common experience of mankind and within reasonable bounds, and when so acting it determines, either in the exercise of its police powers in the promotion of health or as a matter of public policy, that the general welfare of employees, mechanics and workmen, upon whom rest a portion of the burdens of government, will be subserved by limiting the hours of labor to be performed to eight continuous hours per day, and that such limitation will promote their morality, physical and intellectual condition. I think the courts cannot properly say that the limitation is unreasonable or that it violates the provisions of the Constitution. (Atkin v. Kansas, 191 U.S. 207.)
Neither the question of public policy nor of the health law was raised or determined in the Rodgers case, and, therefore, I do not regard it as controlling upon the determination of the questions raised in this case.
WERNER, J., concurs with CULLEN, Ch. J.; MARTIN and VANN, JJ., concur with O'BRIEN, J.; HAIGHT, J., reads dissenting opinion; GRAY, J., absent.
Orders reversed, etc.