Statement of the Case.

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repeatedly held, the law has a definite and distinct value and is readily understood.

I am authorized to state that the CHIEF JUSTICE, MR. JUSTICE BREWER and MR. JUSTICE DAY concur in this dissent.

LOCHNER v. NEW YORK.

ERROR TO THE COUNTY COURT OF ONEIDA COUNTY, STATE OF NEW YORK.

No. 292. Argued February 23, 24, 1905.-Decided April 17, 1905.

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Liberty of contract relating to labor includes both parties to it; the one has as much right to purchase as the other to sell labor.

There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified as a health law to safeguard the public health, or the health of the individuals following that occupation.

Section 110 of the labor law of the State of New York, providing that no employés shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract, in relation to labor, and as such it is in conflict with, and void under, the Federal Constitution.

THIS is a writ of error to the County Court of Oneida County, in the State of New York (to which court the record had been remitted), to review the judgment of the Court of Appeals of that State, affirming the judgment of the Supreme Court, which itself affirmed the judgment of the County Court, convicting the defendant of a misdemeanor on an indictment under a statute of that State, known, by its short title, as the labor

law. The section of the statute under which the indictment was found is section 110, and is reproduced in the margin,1 (together with the other sections of the labor law upon the subject of bakeries, being sections 111 to 115, both inclusive). The indictment averred that the defendant "wrongfully and unlawfully required and permitted an employé working for him in his biscuit, bread and cake bakery and confectionery establishment, at the city of Utica, in this county, to work more than sixty hours in one week," after having been theretofore convicted of a violation of the same act; and therefore, as averred, he committed the crime or misdemeanor, second offense. The plaintiff in error demurred to the indictment on several grounds, one of which was that the facts stated did not

1"§ 110. Hours of labor in bakeries and confectionery establishments.— No employé 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 employé shall work.

"§ 111. Drainage and plumbing of buildings and rooms occupied by bakeries. -All buildings or rooms occupied as biscuit, bread, pie or cake bakeries, shall be drained and plumbed in a manner conducive to the proper and healthful sanitary condition thereof, and shall be constructed with air shafts, windows or ventilating pipes, sufficient to insure ventilation. The factory inspector may direct the proper drainage, plumbing and ventilation of such rooms or buildings. No cellar or basement, not now used for a bakery shall hereafter be so occupied or used, unless the proprietor shall comply with the sanitary provisions of this article.

"§ 112. Requirements as to rooms, furniture, utensils and manufactured products.-Every room used for the manufacture of flour or meal food products shall be at least eight feet in height and shall have, if deemed necessary by the factory inspector, an impermeable floor constructed of cement, or of tiles laid in cement, or an additional flooring of wood properly saturated with linseed oil. The side walls of such rooms shall be plastered or wainscoted. The factory inspector may require the side walls and ceiling to be whitewashed, at least once in three months. He may also require the wood work of such walls to be painted. The furniture and utensils shall be so arranged as to be readily cleansed and not prevent the proper cleaning of any part of a room. The manufactured flour or meal food products shall be kept in dry and airy rooms, so arranged that the floors, shelves and all

constitute a crime. The demurrer was overruled, and the plaintiff in error having refused to plead further, a plea of not guilty was entered by order of the court and the trial commenced, and he was convicted of misdemeanor, second offense, as indicted, and sentenced to pay a fine of $50 and to stand committed until paid, not to exceed fifty days in the Oneida County jail. A certificate of reasonable doubt was granted by the county judge of Oneida County, whereon an appeal was taken to the Appellate Division of the Supreme Court, Fourth Department, where the judgment of conviction was affirmed. 73 App. Div. N. Y. 120. A further appeal was then taken to the Court of Appeals, where the judgment of conviction was again affirmed. 177 N. Y. 145.

other facilities for storing the same can be properly cleaned. No domestic animals, except cats, shall be allowed to remain in a room used as a biscuit, bread, pie, or cake bakery, or any room in such bakery where flour or meal products are stored.

"§ 113. Wash-rooms and closets; sleeping places.-Every such bakery shall be provided with a proper wash-room and water-closet or water-closets apart from the bake-room, or rooms where the manufacture of such food product is conducted, and no water-closet, earth-closet, privy or ash-pit shall be within or connected directly with the bake-room of any bakery, hotel or public restaurant.

"No person shall sleep in a room occupied as a bake-room. Sleeping places for the persons employed in the bakery shall be separate from the rooms where flour or meal food products are manufactured or stored. If the sleeping places are on the same floor where such products are manufactured, stored or sold, the factory inspector may inspect and order them put in a proper sanitary condition.

"§ 114. Inspection of bakeries.-The factory inspector shall cause all bakeries to be inspected. If it be found upon such inspection that the bakeries so inspected are constructed and conducted in compliance with the provisions of this chapter, the factory inspector shall issue a certificate to the persons owning or conducting such bakeries.

"§ 115. Notice requiring alterations.-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."

Argument for Plaintiff in Error.

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Mr. Frank Harvey Field and Mr. Henry Weissmann for plaintiff in error:

The statute in question denies to certain persons in the baking trade the equal protection of the laws.

The legislation must affect equally all persons engaged in the business of baking in order to conform to this provision of the Fourteenth Amendment. It really affects but a portion of the baking trade, namely, employés "in a biscuit, bread or cake bakery, or confectionery establishment." Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Ex parte Westerfield, 55 California, 550.

The Constitution itself says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." It does not say, "no considerable number of persons," but "any person." And this plaintiff in error may appeal with confidence to the supreme law of the land against this law which singles out a certain number of men employing bakers, and permits all others similarly situated, including many who are competitors in business, to work their employés as long as they choose. Freund's Police Power, 633; Missouri v. Lewis, 101 U. S. 31; Barbier v. Connolly, 113 U. S. 27; Colling v. Goddard, 183 U. S. 79, 92; Yick Wo v. Hopkins, 118 U. S. 356; Cooley's Const. Lim. 282; Tin Sing v. Washburn, 20 California, 534.

Classification must be based upon some difference bearing a reasonable and just relation to the act in respect to which the classification is attempted, but no mere arbitrary selection can ever be justified by calling it classification. Santa Fé R. R. Co. v. Matthews, 174 U. S. 105. Class legislation of the character of the act in issue enacted by the States which discriminates in favor of one person or set of persons and against another or others is forbidden by the Fourteenth Amendment. 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 Road Co., 175 N. Y. 87, 90. The equal protection of the laws is a pledge of the protection

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Argument for Plaintiff in Error.

of equal laws. Yick Wo v. Hopkins, 118 U. S. 356, 369; Gibbons v. Ogden, 9 Wheat. 1, 210; Sinnot v. Davenport, 22 How. 227, 243; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746; M., K. & T. R. Co. v. Haber, 169 U. S. 613, 626.

The statute in question is not a reasonable exercise of the police power either from the standpoint of the trade itself or from the standpoint of the decisions interpreting the exercise of the police power in connection with the Fourteenth Amendment.

As to the trade there is no danger to the employé in a firstclass bakery and so far as unsanitary conditions are concerned the employé is protected by other sections of the law. Ex parte Westerfield, 55 California, 550; 2 Buck's Hygiene and Public Health, 10; The Lancet, vol. 2, 1895, 298; Special Sanitary Report of The Lancet on Bakeries, 1889, p. 1140; and 1890, pp. 42, 208, 719; Reference Handbook of Medical Sciences, vol. 6, p. 317; The Practitioner, vol. 53, 1894, p. 387; Arlidge on Diseases of Occupations; Dragle in 45th Annual Report, Register General.

The law is not a proper exercise of the police power. 4 Black. 162; Jeremey Bentham, Edinburgh ed., part IX, 157; Cooley Const. Lim. 572; 2 Kent's Com. 340; Slaughter House Case, 16 Wall. 36; Re Jacobs, 98 N. Y. 98; Tiedemann Police Power, 178; Freund Police Power, 534.

Where the ostensible object of an enactment is to secure the public comfort, welfare or safety, it must appear to be adapted to that end, it cannot invade the rights of persons and property under the guise of the police regulation, when it is not such in fact. Eden v. People, 161 Illinois, 296; Ex parte Jentsch, 112 California, 468; Ritchie v. People, 155 Illinois, 98; Lake View v. Rose Hill Cemetery Co., 70 Illinois, 191; People v. Marx, 99 N. Y. 377, 387; People v. Gillson, 109 N. Y. 389, 399; People v. Bresecker, 169 N. Y. 53; People v. Hawkins, 157 N. Y. 1; People v. Beattie, 96 App. Div. N. Y. 383, 390, 399. For other decisions of the Court of Appeals, interpreting the labor law, see People ex rel. v. Coler, 166 N. Y. 1; Ryan v. City

VOL, CXCVIII-4