THE GREEN BAG

It was, thus, in the independent exercise of their judgment, that the Appellate Di vision, as well as the Court of Appeals (by bare majorities, it is true), sustained the validity of the law. They found in it a legitimate exercise of the police power, justi fied by the tendency of the act to reduce the risk of injury from excessive labor to the health of a class of employees working under conditions less sanitary than those of most other occupations (People v. Lochner, 73 App. Div. 120, 177 N. Y. 145). By the narrow margin of one vote, to which we have become accustomed in im portant constitutional cases, the Federal Supreme Court has reversed the decisions of the New York courts of all resorts, and declared the limitation of hours of labor, sought to be imposed by the act in question, to be contrary to the Fourteenth Amend ment. The importance of the decision is obvious, for it is the first time that the Supreme Court, in a case not involving interstate re lations, enforces a constitutional right of liberty of contract against the exercise of the police power on the part of the state, in opposition to the judgment of the courts of that state that such power was legiti mately exercised. The authority of the tribunal which has rendered the decision does not forbid an inquiry into its soundness, as tested either by precedent, by the force of its reasoning, or by the established principles of consti tutional law. It is, moreover, necessary to determine the precise import of the case, and to attempt to estimate its bearing upon existing and future legislation.

Was there any precedent which should have controlled the decision of the court? The case of Holden v. Hardy was most nearly in point. The act there sustained by the Supreme Court agreed with the New York law in the number of hours limited (sixty per week, or ten per day), and in

singling out for regulation a certain class of employees. The Utah act contained an emergency clause, which is not to be found in the New York statute, and some stress is laid upon this difference by the prevailing opinion. But the emergency clause was not in any way controlling in Holden v. Hardy, being barely mentioned in the opinions. Emergencies where life or property is in im minent danger are of not uncommon occur rence in mines, but almost unheard of in bakeries. If provisions for remote and im probable contingencies were to be held es sential to the exercise of the police power, how many of our health and safety statutes could stand the test? If such cases can not be taken care of by construction of the law, may they not be left safely to the good sense of the prosecuting authorities, or to the power of the jury to acquit? The absence of the emergency clause can, therefore, not be seriously relied upon to distinguish Hol den v. Hardy from Lochner v. New York. In order to reconcile the two decisions, it is necessary to find a sufficient and controlling difference in the classes of employments to which the acts of Utah and New York re spectively applied. The case of Holden v. Hardy concerned a miner; but the act ap plied also to smelting and refining works, and was sustained in Mo. Smelting and bakery establishments have this in common, that they vitiate the air, the former by noxious gases and minute particles of metal, the latter by the dust of flour and excessive heat; in either case it is conceded that the respiratory organs are unfavorably affected. The decision in Holden v. Hardy did not require the existence of imminent and in evitable prejudice to health; the court deemed it sufficient to say that, "The legislature had adjudged that a limitation is necessary for the preservation of the health of the em ployees, and there are reasonable grounds for believing that such determination is sup ported by the facts." (169 U. S. 398.) —'V If, then, the cases are to be distinguished, it must be that in the New York case there