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38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499, within its jurisdiction does not import," 501."
Referring to the limitations placed this court has recently said, "an absolute by the state upon the hours of workmen, right in each person to be at all times and the court in the same case said (p. 395, L. in all circumstances wholly freed from reed. p. 792, Sup. Ct. Rep. p. 389): “These straint. There are manifold restraints to employments, when too long pursued, the which every person is necessarily subject legislature has judged to be detrimental to for the common good.” Jacobson v. Massathe health of the employees, and, so long as chusetts, 197 U. S. 11, 25 Sup. Ct. Rep. 358, there are reasonable grounds for believing 49 L. ed. — that this is so, its decision upon this sub- Granting, then, that there is a liberty of ject cannot be reviewed by the Federal contract which cannot be violated even courts.”
under the sanction of direct legislative enSubsequently, in Gundling v. Chicago, actment, but assuming, as according to 177 U. S. 183, 188, 44 L. ed. 725, 728, 20 settled law we
we may assume that such Sup. Ct. Rep. 633, 635, this court said: liberty of contract is subject to such regu“Regulations respecting the pursuit of a lations as the state may reasonably prelawful trade or business are of very frequent scribe for the common good and the welloccurrence in the various cities of the coun-being of society, what are the conditions try, and what such regulations shall be and under which the judiciary may declare such to what particular trade, business, or oc- regulations to be in excess of legislative cupation they shall apply, are questions for authority and void ? Upon this point there the state to determine, and their determina- is no room for dispute; for the rule is unition comes within the proper exercise of versal that a legislative enactment, Federal the police power by the state, and, unless or state, is never to be disregarded or held the regulations are so utterly unreasonable invalid unless it be, beyond question, plainand extravagant in their nature and ly and palpably in excess of legislative purpose that the property and personal power. In Jacobson v. Massachusetts, 197 rights of the citizen are unnecessarily, and U. S. 11, 25 Sup. Ct. Rep. 358, 49 L. ed. in a manner wholly arbitrary, interfered we said that the power of the courts to rewith or destroyed without due process of view legislative action in respect of a matter law, they do not extend beyond the power affecting the general welfare exists only of the state to pass, and they form no sub-“when that which the legislature has done ject for Federal interference. As stated in comes within the rule that, if a statute purCrowley v. Christensen, 137 U. S. 86, 34 L. porting to have been enacted to protect the ed. 620, 11 Sup. Ct. Rep. 13, 'the possession public health, the public morals, or the and enjoyment of all rights are subject to public safety has no real or substantial resuch reasonable conditions may be lation to those objects, or is, beyond all deemed by the governing authority of the question, a plain, palpable invasion of country essential to the safety, health, rights secured by the fundamental law,” peace, good order, and morals of the com- citing Mugler v. Kansas, 123 U. S. 623, 661, munity.''
31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; In St. Louis I. M. & S. R. Co. v. Paul, Minnesota v. Barber, 136 U. S. 313, 320, 34 173 U. S. 404, 409, 43 L. ed. 746, 748, 19 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 419, and in Knoxville Iron Co. Sup. Ct. Rep. 862; Atkin v. Kansas, 191 v. Harbison, 183 U. S. 13, 21, 22, 46 L. ed. U. S. 207, 223, 48 L. ed. 148, 158, 24 Sup. 55, 61, 22 Sup. Ct. Rep. 1, it was distinctly Ct. Rep. 124. If there be doubt as to the adjudged that the right of contract was not validity of the statute, that doubt must "absolute, but may be subjected to the re- therefore be resolved in favor of its validity, straints demanded by the safety and wel- and the courts must keep their hands off, fare of the state.” Those cases illustrate leaving the legislature to meet the responsithe extent to which the state may restrict bility for unwise legisļation. If the end or interfere with the exercise of the right which the legislature seeks to accomplish of contracting.
be one to which its power extends, and if The authorities on the same line are so the means employed to that end, although numerous that further citations are un- not the wisest or best, are yet not plainly necessary.
and palpably unauthorized by law, then the I take it to be firmly established that court cannot interfere. In other words, what is called the liberty of contract may, when the validity of a statute is questioned, within certain limits, be subjected to regu- the burden of proof, so to speak, is upon lations designed and calculated to promote those who assert it to be unconstitutional. the general welfare, or to guard the public Al’Culloch v. Maryland, 4 Wheat. 316, 421, health, the public morals, or the public 4 L. ed. 579, 605. safety. “The liberty secured by the Consti- Let these principles be applied to the tution of the United States to every person ' present case. By the statute in question it.
is provided that "no employee shall be re- yond question, a plain, palpable invasion quired, or permitted, to work in a biscuit, of rights secured by the fundamental law. bread, or cake bakery, or confectionery es- Jacobson v. Massachusetts, 196 U. S. 11, tablishment, more than sixty hours in any ante, p. 358, 25 Sup. Ct. Rep. 358. Thereone week, or more than ten hours in any fore I submit that this court will transcend one day, unless for the purpose of making its functions if it assumes to annul the stata shorter work day on the last day of the ute of New York. It must be remembered week; nor more hours in any one week than that this statute does not apply to all kinds will make an average of ten hours per day of business. It applies only to work in for the number of days during such week bakery and confectionery establishments, in in which such employee shall work.”
which, as all know, the air constantly It is plain that this statute was enacted breathed by workmen is not as pure and in order to protect the physical well-being healthful as that to be found in some other of those who work in bakery and confection establishments or out of doors. ery establishments.
It may be that the Professor Hirt in his treatise on the "Disstatute had its origin, in part, in the belief cases of the Workers” has said: “The labor that employers and employees in such estab- of the bakers is among the hardest and most lishments were not upon an equal footing, laborious imaginable, because it has to be and that the necessities of the latter often performed under conditions injurious to the compelled them to submit to such exactions health of those engaged in it. It is hard, as unduly taxed their strength. Be this as very hard, work, not only because it requires it may, the statute must be taken as ex- a great deal of physical exertion in an overpressing the belief of the people of New heated workshop and during unreasonably York that, as a general rule, and in the case long hours, but more so because of the of the average man, labor in excess of sixty erratic demands of the public, compelling hours during a week in such establishments the baker to perform the greater part of his may endanger the health of those who thus work at night, thus depriving him of an labor. Whether or not this be wise legisla- opportunity to enjoy the necessary rest and tion it is not the province of the court to sleep,-a fact which is highly injurious to inquirė. Under our systems of government his health.” Another writer says:
“The the courts are not concerned with the wis constant inhaling of flour dust causes indom or policy of legislation. So that, in flammation of the lungs and of the bronchial determining the question of power to inter-tubes. The eyes also suffer through this fere with liberty of contract, the court may dust, which is responsible for the many inquire whether the means devised by the cases of running eyes among the bakers. state are germane to an end which may be The long hours of toil to which all bakers lawfully accomplished and have a real or
are subjected produce rheumatism, cramps, substantial relation to the protection of land swollen legs. The intense heat in the health, as involved in the daily work of the workshops induces the workers to resort to persons, male and female, engaged in bakery cooling drinks, which, together with their and confectionery establishments. But when this inquiry is entered upon I find it impos- bodies to the change in the atmosphere, is
habit of exposing the greater part of their sible, in view of common experience, to say another source of a number of diseases of relation between the means employed by the various organs. Nearly all bakers are palestate and the end sought to be accomplished workers of other crafts, which is chiefly
faced and of more delicate health than the by its legislation. Mugler v. Kansas, 123 workers of other crafts, which is chiefly U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. due to their hard work and their irregular Rep. 273. Nor can I say that the statute and unnatural mode of living, whereby the has no appropriate or direct connection with power of resistance against disease is greatly
diminished. that protection to health which each state
The average age of a baker is owes to her citizens (Patterson v. Ken- below that of other workmen; they seldom tucky, 97 U. S. 501, 24 L. ed. 1115); or live over their fiftieth year, most of them that it is not promotive of the health of dying between the ages of forty and fifty. the employees in question (Holden v. Hardy, During periods of epidemic diseases the 169 U. S. 366, 391, 42 L. ed. 780, 790, 18 bakers are generally the first to succumb to Sup. Ct. Rep. 383; Lawton v. Steele, 152 the disease, and the number swept away U. S. 133, 139, 38 L. ed. 385, 389, 14 Sup. during such periods far exceeds the number Ct. Rep. 499); or that the regulation pre- of other crafts in comparison to the men emscribed by the state is utterly unreasona- ployed in the respective industries. When, ble and extravagant or wholly arbitrary in 1720, the plague visited the city of Mar(Gundling v. Chicago, 177 U. S. 183, 188, seilles, France, every baker in the city suc44 L. ed. 725, 728, 20 Sup. Ct. Rep. 633). cumbed to the epidemic, which caused con. Still less can I say that the statute is, besiderable excitement in the neighboring cities and resulted in measures for the sani- | hours as the proper basis of a day's labor. tary protection of the bakers."
I do not stop to consider whether any parIn the Eighteenth Annual Report by the ticular view of this economic question preNew York Bureau of Statistics of Labor it sents the sounder theory. What the precise is stated that among the occupations involv- facts are it may be difficult to say. It is ing exposure to conditions that interfere enough for the determination of this case, with nutrition is that of a baker. (p. 52.) and it is enough for this court to know, that In that Report it is also stated that, “from the question is one about which there is a social point of view, production will be room for debate and for an honest difference increased by any change in industrial organ-of opinion. There are many reasons of a ization which diminishes the number of weighty, substantial character, based upon idlers, paupers, and criminals. Shorter the experience of mankind, in support of the hours of work, by allowing higher standards theory that, all things considered, more than of comfort and purer family life, promise ten hours' steady work each day, from week to enhance the industrial efficiency of to week, in a bakery or confectionery estabthe wage-working class,-improved health, lishment, may endanger the health and longer life, more content and greater intel- shorten the lives of the workmen, thereby ligence and inventiveness." (p. 82.) diminishing their physical and mental ca
Statistics show that the average daily pacity to serve the state and to provide for working time among workingmen in differ- those dependent upon them. ent countries is, in Australia, eight hours; If such reasons exist that ought to be the in Great Britain, nine; in the United States, end of this case, for the state is not amenine and three-quarters; in Denmark, nine nable to the judiciary, in respect of its legisand three-quarters; in Norway, ten; Swe- lative enactments, unless such enactments den, France, and Switzerland, ten and one are plainly, palpably, beyond all question, half; Germany, ten and one-quarter; Belo inconsistent with the Constitution of the gium, Italy, and Austria, eleven; and in United States. We are not to presume that Russia, twelve hours.
the state of New York has acted in bad We judicially know that the question of faith. Nor can we assume that its legislathe number of hours during which a work- ture acted without due deliberation, or that man should continuously labor has been, for it did not determine this question upon the a long period, and is yet, a subject of serious fullest attainable information and for the consideration among civilized peoples, and common good. We cannot say that the by those having special knowledge of the state has acted without reason, nor ought laws of health. Suppose the statute pro- we to proceed upon the theory that its hibited labor in bakery and confectionery action is a mere sham. Our duty, I submit, establishments in excess of eighteen hours is to sustain the statute as not being in each day. No one, I take it, could dispute conflict with the Federal Constitution, for the power of the state to enact such a stat. the reason—and such is an all-sufficient reaute. But the statute before us does not son-it is not shown to be plainly and palembrace extreme or exceptional cases. It pably inconsistent with that instrument. may be said to occupy a middle ground in Let the state alone in the management of respect of the hours of labor. What is the its purely domestic affairs, so long as it true ground for the state to take between does not appear beyond all question that it legitimate protection, by legislation, of the has violated the Federal Constitution. This public health and liberty of contract is not view necessarily results from the principle a question easily solved, nor one in respect that the health and safety of the people of of which there is or can be absolute cer- a state are primarily for the state to guard tainty. There are very few, if any, ques and protect. tions in political economy about which en- I take leave to say that the New York tire certainty may be predicated. One statute, in the particulars here involved, writer on relation of the state to labor has cannot be held to be in conflict with the well said: “The manner, occasion, and degree 14th Amendment, without enlarging the in which the state may interfere with the scope of the amendment far beyond its origiindustrial freedom of its citizens is one of nal purpose, and without bringing under the most debatable and difficult questions of the supervision of this court matters which social science.” Jevons, 33.
have been supposed to belong exclusively to We also judicially know that the number the legislative departments of the several of hours that should constitute a day's states when exerting their conceded power labor in particular occupations involving the to guard the health and safety of their citiphysical strength and safety of workmen zens by such regulations as they in their has been the subject of enactments by Con- wisdom deem best. Health laws of every gress and by nearly all of the states. Many, description constitute, said Chief Justice if not most, of those enactments fix eight Marshall, a part of that mass of legislation which "embraces everything within the ter- / void under the 14th Amendment. But it ritory of a state, not surrendered to the took occasion to say what may well be here general government; all which can be most repeated: “The responsibility therefor rests advantageously exercised by the states them- upon legislators, not upon the courts. No selves." Gibbons v. Ogden, 9 Wheat. 1, 203, evils arising from such legislation could be 6 L. ed. 23, 71. A decision that the New more far reaching than those that might York statute is void under the 14th Amend come to our system of government if the ment will, in my opinion, involve conse- judiciary, abandoning the sphere assigned quences of a far-reaching and mischievous to it by the fundamental law, should enter character; for such a decision would seri- the domain of legislation, and upon grounds ously cripple the inherent power of the merely of justice or reason or wisdom annul states to care for the lives, health, and well-statutes that had received the sanction of being of their citizens. Those are matters the people's representatives. We are rewhich can be best controlled by the states. minded by counsel that it is the solemn The preservation of the just powers of the duty of the courts in cases before them to states is quite as vital as the preservation guard the constitutional rights of the citiof the powers of the general government. zen against merely arbitrary power. That When this court had before it the ques- is unquestionably true.
But it is equally tion of the constitutionality of a statute of true--indeed, the public interests imperaKansas making it a criminal offense for a tively demand—that legislative enactments contractor for public work to permit or re- should be recognized and enforced by the quire his employees to perform labor upon courts as embodying the will of the people, such work in excess of eight hours each day, unless they are plainly and palpably beyond it was contended that the statute was in all question in violation of the fundamental derogation of the liberty both of employees law of the Constitution.” Atkin v. Kansas, and employer. It was further contended 191 U. S. 207, 223, 48 L. ed. 148, 158, 24 that the Kansas statute was mischievous in Sup. Ct. Rep. 124, 128. its tendencies. This court, while disposing The judgment, in my opinion, should be of the question only as it affected public affirmed. work, beld that the Kansas statute was not
(198 U. S. 17) PABST BREWING COMPANY, Appt., was alleged the law of Missouri imposed
upon beer or other malt liquors when G. Y. CRENSHAW et al.
shipped from other states into Missouri,
after its delivery within that state to the Commerce in intoxicating liquors—validity consignee, and when held for sale for con
of state inspection law-interstate com- sumption in Missouri or for shipment to merce.
other states. The general ground upon
which the law was assailed was that the 1. A state statute imposing an inspection fee exactions complained of were regulations of
upon beer or other malt liquors shipped from commerce repugnant to the Constitution of other states into that state, and held there for sale and consumption therein, must, al
the United States. It was, in addition, though producing a revenue, and not provid. specially averred that, so far as the law iming for an adequate inspection, be deemed en posed a charge on beer shipped from Wisacted by the state “in the exercise of its po- consin into Missouri, and held there by the lice powers,” within the meaning of the Wil consignee for sale and shipment for conson act of August 8, 1890 (26 Stat. at 1, 313, sumption in other states, the Missouri law chap. 728, U. S. Comp. Stat. 1901, p. 3177), subjecting to laws so enacted all intoxicat. was repugnant to the commerce clause, being liquors arriving in the state, where the cause in this particular it discriminated in highest state court has upheld as a valid po- favor of beer manufactured in Missouri and lice regulation so much of the statute as im-held for sale or shipment for consumption poses the same fee on beer of domestic manu
in other states. facture over the objection that it is a revenue measure, and not an inspection law.
The bill was amended and demurred to. 2. An inspection law enacted by a state "in Whilst the court considered the law not to
the exercise of its police powers,” within the be in conflict with the commerce clause on meaning of the Wilson act of August 8, 1890, the general grounds alleged, it nevertheless subjecting to laws so enacted all intoxicating concluded, because of the averment concernliquors arriving in the state, is not void as an interference with interstate commerce being discrimination as to beer shipped into cause it operates to deter shipments into the Missouri for reshipment to other states, state.
that the demurrer could not be sustained. 8. Interstate commerce in intoxicating liquors 120 Fed. 144. An answer was thereupon
is not unlawfully burdened by an inspection filed, as also a replication, and subsequently law enacted by a state “in the exercise of its the cause was submitted upon the pleadings police powers,” within the meaning of the and an agreed statement of facts. The suWilson act of August 8, 1890, subjecting to laws so enacted intoxicating liquors arriving preme court of Missouri having decided in the state, because the statute does not pro- that the law in question did not provide for vide for an adequate inspection, and imposes any charge or burden upon beer or other a burden beyond the cost of inspection.
malt liquors shipped into Missouri and held [No. 85.]
there for reshipment to points outside of the
state, the court below, adhering to its Argued December 8, 1904. Decided April previous opinion as to the general aver17, 1905.
ments of the bill, and applying the construcPPEAL from the Circuit Court of the to the statute, held that it did not disA
tion given by the supreme court of the state United States for the Western District
criminate, and dismissed the suit. of Missouri to review a decree dismissing a
The law of Missouri in question is enbill to enjoin the collection of an inspection titled "An Act Creating the Office of Infee upon beer shipped from another state into Missouri and held there for sale and spector of Beer and Malt Liquors of the
State, and Providing for the Inspection of consumption therein. Affirmed.
Beer and Malt Liquors Manufactured and See same case below, 120 Fed. 144.
Sold in This State." The facts are stated in the opinion.
The provisions of the Messrs. Clifford Histed, James H. Hark- act essential to be considered may be sum
marized as follows: less, Charles 8. Crysler, and Francis C.
It creates the office of beer inspector, to Downey for appellant. Messrs. Edward C. Crow and William be appointed by the governor, who shall be
an expert beer brewer, and who is required M. Williams for appellees.
to furnish a bond, and is given power to apMr. Justice White delivered the opinion point the necessary deputies to execute the of the court:
provisions of the act. The act forbids every The Pabst Brewing Company, a Wis- person or corporation engaged in brewing consin corporation, filed its bill in the court within the state from using any material below to enjoin the beer inspector of the or chemical in the manufacture of beer or state of Missouri and his assistant from col- other malt liquors other than pure hops or lecting, or attempting to collect, an inspec- pure extract of hops, or barley, malt, or tion charge, fee, license, or burden, which it 'wholesome yeast or rice. It is provided