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ber of hours a week is, in our judgment, so wholly beside the matter of a proper, reasonable, and fair provision as to run counter to that liberty of person and of free contract provided for in the Federal Constitution.

In our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workmen. The connection, if any exist, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day it is all right, but if ten and a half or eleven, his health is in danger and his bread may be unhealthy, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable and entirely arbitrary....

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employee (all being men, sui juris) in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

Two other opinions, those of Judges O'Brien and Bartlett, are interesting for the light they throw upon their authors' knowledge of present industrial conditions. Judge O'Brien alludes to the antiquity of the bakers' vocation, and also to its universality. It is a process found in every home in the land, as well as in

places called bakeries, where bread is made for sale to the public. It has never been supposed that it was a trade or vocation that was or might be dangerous to health, morals, or good order, or that there was any thing about it to justify legislation restricting the right of the master and servant to make their own contracts, express or implied, with respect to hours of work or the terms of employment. There is nothing in the record before us from which it can be inferred that there was any ground for the passage of the statute as a police regulation for the protection of health, morals, or good order, and hence it cannot be upheld as an exercise of the police power. It is a plain discrimination against a limited class of people who happen to be obliged to employ labor in the manufacture of bread, biscuit, or confectionery in those places called bakeries. This relatively small class is restricted by the statute to the regulations there prescribed with respect to the hours of labor by their employees, and is prohibited from agreeing with them as to the time they are to work, even though extra pay should be given for overwork-a right which the law gives to all other persons employing labor. If the legislature can do all this, then the right to enact what wages the servant shall receive per day or per hour must necessarily follow as an inevitable conclusion. A statute fixing the wages of the servant at such a sum as to enable him to live more comfortably could be defended as a health law by the same argument and authority adduced in support of the section of the present law, the violation of which is the only crime charged.

Judge Bartlett selects one of the extracts from the authorities cited on the matter of health and finds in that authority that the breathing of air filled with fine particles that come from grinding grain and loaf sugar may cause consumption. But evidence is not found by the Justice in the record warranting the conclusion that bakers in New York state are subject to any such peril,

if any there be, as might result from grinding the articles they use. It is common experience that the baker, like the cooks in hotels, restaurants, and private families, has provided for him in his business flour, sugar, and the other ingredients duly prepared for immediate use. The claim that the compounding of these constituents, so prepared, in the business of a baker, is an unhealthy occupation, will surprise the bakers and good housewives of this state. The grinding of steel, like the needle grinding of Sheffield, England, and of other similar materials and substances, causing clouds of impalpable dust, is not to be confounded with the avocation of the family baker, engaged in the necessary and highly appreciated labor of producing bread, pies, cakes, and other commodities more calculated to cause dyspepsia in the consumer than consumption in the manufacturer. The country miller of fifty years ago, who passed a long and happy life amid the hum of machinery and the grinding process of the upper and nether stones, little dreamed of a coming day when the legislature, in the full panoply of paternalism, would rescue his successor from the appalling dangers of the life he led until old age summoned him to retire.

CHAPTER XIX

HOURS OF LABOR-BARBERS

THE line of division between the trades that should and those that should not be regulated by legislation has been difficult to draw. If any trade were to be selected as the one most nearly on the border line, it would be that of the barber. Legislation applying to barbers has had reference chiefly to the keeping of barber shops open on Sunday. Concerning such laws the courts in the several states have expressed diverse opinions. Such laws have been passed and have led to judicial decisions in the courts of New York, Georgia, California, Illinois, and in the United States supreme court-all within the past fifteen years. Other state courts have also passed upon such legislation, though not in opinions that contain any new views of importance. In the states named two courts took an attitude favorable to the principle of such legislation and two unfavorable. The United States supreme court sided with the former. The two opinions which are based upon principles hostile to this legislation were both written in 1896, before the more favorable views had been expressed. The California court in its opinion (ex parte Jentzsch) emphasized that such legislation could not be regarded favorably "from a religious standpoint."

Under a constitution which guarantees to all equal liberty of religion and conscience, any law which forbids an act not in itself contra bonos mores, because that act is repugnant to

the beliefs of one religious sect, of necessity interferes with the liberty of those who hold to other beliefs or to none at all.

Such laws, therefore, must be viewed as civil enactments. If declared valid at all, they must be upheld as a proper exercise of the police power.

Entering more fully into the arguments, Judge Henshaw continues:

Still it may be suggested in passing that our government was not designed to be paternal in form. We are a self-governing people, and our just pride is that our laws are made by us as well as for us. Every individual citizen is to be allowed so much liberty as may exist without impairment of the equal rights of his fellows. Our institutions are founded upon the conviction that we are not only capable of self-government as a community, but, what is the logical necessity, that we are capable, to a great extent, of individual self-government. If this conviction shall prove ill founded, we have built our house upon sand. The spirit of a system such as ours is therefore at total variance with that which, more or less veiled, still shows in the paternalism of other nations. . . .

In brief, we give to the individual the utmost possible amount of personal liberty, and with that guaranteed him, he is treated as a person of responsible judgment, not as a child in his nonage, and is left free to work out his destiny as impulse, education, training, heredity, and environment direct him. So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic, for the difficulty which is experienced in defining its just limits. and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws none the less dangerous because well meant. We think the act under consideration gives plain evidence of such encroachment.

The laboring barber, engaged in a most respectable, useful, and cleanly pursuit, is singled out from the thousands of his