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erty. .. It is, however, a fallacy to transfer this argument from the individual to the particular class, and to say that the police power has no business to protect the class against its own acts. . . . If the health of the class is impaired by long hours of work under unsanitary conditions, a public interest exists which may set the police power in motion."
In other states than Colorado the influence of the federal decision has been more marked. In at least four instances it has been accepted as determining, and laws restricting the hours of labor of adult men in special employments have been sustained. The first of these is a law of Missouri, passed March 23, 1901, which forbids the employment of persons in underground mines for more than eight hours a day. With it should be grouped as a second instance the eight-hour law applying to underground mines and smelters passed by the state of Nevada on February 23, 1903. These statutes are so similar to that of Utah that no new considerations are brought out in the decisions? upholding them. The third instance is a law of Rhode Island, passed April 4, 1902, which limits the hours of street railway employees to ten a day. As the supreme court of that state declared, if the Utah law is a legitimate exercise of the police power, the Rhode Island statute “is more clearly within such power, for the triple reason that it deals with public corporations, the use of a public franchise, and a provision for public safety.”
The fourth instance is the more significant New York law limiting the hours of employment in bake-shops in that state to ten a day. This is more nearly parallel with the Utah law, and the decision of the court of appeals sustaining it, which was rendered on January 12, 1904, has been justly heralded as “one of the most important decisions handed down by [that tribunal] in recent years." The facts that it was reached by the close vote of four to three and that five of the seven judges sitting saw
1 The Police Power, p. 142.
* State v. Cantwell et al., 78 Southwestern Reporter, p. 569 ; in re Boyce, 75 Pacific Reporter, p. I.
* July 27, 1902, 54 Atlantic Reporter, p. 602.
• People v. Lochner, 177 N. Y. Reporter, p. 145. A good summary of this decision is given in the Bulletin of the New York Department of Labor, March, 1904, pp. 37-43.
fit to hand down opinions, which together fill forty-four pages of the official record, add to its interest. A brief summary will suffice to indicate the grounds upon which the decision rested.
Chief Judge Parker, speaking for the majority of the court, prefaces his opinion with a review of the decisions outlining the scope of the police power similar to that in the federal decision on the Utah case. Coming to the question at bar, he continues:
It can be safely said that the family of to-day is more dependent upon the baker for the necessaries of life than upon any other source of supply. This being so it is within the police power of the legislature to so regulate the conduct of that business as to best promote and protect the health of the community. . . . Why should any one question the object of the legislature in providing . that "no employee shall be required or permitted to work” in such an establishment“ more than sixty hours in any one week," an average of ten hours for each working day? It is but reasonable to assume from this statute as a whole that the legislature had in mind that the health and cleanliness of the workers, as well as the cleanliness of the work-rooms, was of the utmost importance, and that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits and tends to dirt and disease. If there is opportunity — and who can doubt it? for this view, then the legislature had the power to enact as it did, and the courts are bound to sustain its action as justified by the police power.
After referring to the decision in the Utah case and pointing out that it is "controlling so far as the fourteenth amendment is concerned, and should be controlling in this court so far as equivalent provisions of our state constitution are concerned,” he goes on to say:
It must also be held, under the authority of Havnor's case though it may be assumed from the reading of the statute that the object of the legislature is to protect employees in such establishments from working more than ten hours a day — that it is within the police power and therefore not repugnant to the state constitution. Many medical authorities classify workers in bakers' and confectioners' establishments with potters, stone-cutters, file-grinders, and other workers whose occupation necessitates the inhalation of dust particles and hence predisposes its members to consumption.
1 This was the case under the Sunday closing law applying to barbers already referred to, supra, p. 599.
In view of this fact it may reasonably be regarded as a dangerous trade requiring special regulation.
This latter aspect of the case, which brings it into the same class as the Utah statute, is made prominent also in the concurring opinion of Judge Vann. He says:
The evidence, while not uniform, leads to the conclusion that the occupation of the 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.
The limitation of work in bake-shops to ten hours a day or sixty hours a week is thus justified as a health law whether it be looked at as a means of securing greater cleanliness in such establishments, and thus protecting the public health, or whether it be regarded merely as a means of protecting the health of the overworked bakers themselves.
A comparison of these decisions shows that they open an indefinitely large field to the exercise of the police power in the regulation of hours of labor. If a limitation of hours to ten a day for bakers can be justified as a means of protecting the community's bread, manifestly a large number of trades may be subjected to similar restrictions. It is certainly as important to the community to have its butchers, its cooks, and the thousands of employees of its transportation companies “well and not over-worked” as to have its bakers so. If the hours of those employed in mines and smelters may be limited to eight a day for the reason that longer hours are detrimental to health, what ground remains for opposing reasonable restrictions on hours in any employments? It is incontestable that excessive hours of work of any kind are injurious to health. If a broad view be taken, it must be conceded that the full vigor and efficiency of the classes that work predominantly with their hands can only be maintained if time is given them for mental exercise. It is even more true that the best health of brain workers demands a definite period each day for muscular development. For these reasons, if the argument of the federal supreme court in the Utah case be generally accepted, may not the courts be relied upon to give an ever wider field to legislative discretion in this department of labor regulation? May not any restriction on hours which is defensible on economic grounds be properly characterized as a reasonable health measure and therefore brought within the pale of the police power? As regards this important class of regulations, also, the contention that the question of constitutionality is merely another phase of the question of economic expediency appears to be abundantly justified.
Space will not permit a discussion of other classes of restrictive labor laws. The same principles which have caused the courts to withdraw their opposition to truck acts, special Sunday closing laws for barbers, and acts restricting hours in special employments, are leading them to admit a large number of other measures within the pale of the police power. The legal phrases used — that the purpose of the act must be to protect the health or morals of the community, that it must be based on a reasonable classification, etc. — merely disguise the fact that to the courts, as presumably to the legislatures which enact the laws, the really decisive consideration is whether the restrictions are calculated to promote the general welfare. The chief difference is that the courts — at least nominally — withdraw their opposition when they are convinced that a good presumptive case can be made out for the law on the ground that the ultimate determination as to whether it is expedient or not belongs to the legislature, while the latter body in passing the law registers its view that the measure is expedient.
I have not attempted to discuss in this article the merits or demerits of the various laws that have been referred to. Many economists would not approve of the recommendation of the
United States Industrial Commission that “the [labor] provisions of the Utah constitution and statutes be followed in all the states," I so that the eight-hour day for men employed in underground mines may become universal. All will agree, however, that we are much in need of further experience of the effect of regulations of this sort. Here as elsewhere it is only through experiment that the continually recurring differences between advocates of government regulation and of the laissez-faire policy can be adjusted. On this account the growing liberality of American courts in the scope they concede to the legislative police power should be ground for general satisfaction.
HENRY R. SEAGER.
· Report of the Industrial Commission, vol. v, p. 4.