It is to the interest of the state to have strong, robust, healthy citizens, capable of self support, of bearing arms, and of adding to the resources of the country. Laws to effect this purpose, by protecting the citizen from overwork, and requiring a general day of rest to restore his strength and preserve his health, have an obvious connection with the public welfare.

As though conscious of an error in judgment at the expense of society in the Jacob's case, the judge continued: Independent of any question relating to morals or religion, the physical welfare of the citizen is a subject of such primary importance to the state, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power, and hence valid under the constitution. . . . This [the statute under discussion] affords an opportunity, recurring at regular intervals, for rest, needed both by the employer and the employed, and the latter, at least, may not have the power to observe a day of rest without the aid of legislation. As Mr. Tiedeman says, in his work on Police Powers: "If the law did not interfere, the feverish, intense desire to acquire wealth, . . . inciting a relentless rivalry and competition, would ultimately prevent not only the wage earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation, by resting periodically from labor." . . . As barbers generally work more hours each day than most men, the legislature may well have concluded that legislation was necessary for the protection of their health. We think that this statute was intended and is adapted to promote the public health, and thereby to serve a public purpose of the utmost importance, by promoting the observance of Sunday as a day of rest. It follows, therefore, that it does not go beyond the limits of legislative power by depriving any one of liberty or property within the meaning of the constitution.

This interpretation by the court of appeals forms an odd

contrast to that which struck so hard a blow at the cause of the cigar makers. In that instance the manufacture of cigars in unregulated tenement houses was deemed to have "no relation whatever to public health," while in this instance the relation between private and public health was considered vital, and a just ground for interference by law. The opinion of the court in the barbers' case could well be recalled more frequently than it has been in the adjudication of later laws for the protection of workers.

Consistent with its view in People v. Havnor, the New York court of appeals affirmed a legislative order issued nearly twenty years later (1913) for the general extension of the day-of-rest provision to employees in factories and mercantile establishments. Judge Hiscock, for the court explained:

The doctrine that personal liberty must yield to what is supposed to be the public welfare has not waned any during recent years, and if the statute now before us comes within the principles which sanction and regulate such legislation it is not subject to the attack made upon its constitutionality. . . . Our only inquiry must be . . . whether it can fairly be believed that its [the statute's] natural consequences will be in the direction of betterment of public health and welfare, and, therefore, that it is one which the state for its protection and advantage may enact and enforce. It seems to me very clear that we may answer that it is such an one.

...

Judge Hiscock then bore admirable witness to what seems a growing conviction that protective laws for women and children may also be necessary for men:

The laws which have been passed and sustained with general approval in almost every jurisdiction limiting the hours of labor for women and children and for those engaged in especially trying employments, such as mining and operation of the railroads, amply testify to the widespread belief that in certain fields the

public health and welfare are subserved by generous opportunities for relaxation and recuperation. A constantly increasing study of industrial conditions I believe leads to the conviction that the health, happiness, intelligence and efficiency even of an adult man laboring in such employments as those mentioned in this statute will be increased by a reasonable opportunity for rest, for outdoor life and recreation, for attention to his own affairs, and, if he will, study and education.

Dwelling upon the relative jurisdiction of court and legislature, the Judge continued:

Then we come to the question what is a reasonable opportunity, and within wide limits that problem is for the legislature. Anybody would probably say that one day in thirty or sixty would be too little and one day in each two days extravagant. Between these extremes none can safely assert that the mean adopted by the legislature of one day in seven is unreasonable.1

2

This act has the distinction of being the only one-day-ofrest-in-seven act of general application that has been contested in a higher court. It is even more notable, as it stands in contrast to an earlier invalidation of a rest-day act by the supreme court of Missouri, whose decision was based upon the reasoning of the Federal Supreme Court in regard to limiting hours of bakers in New York State, an act which the New York court had affirmed.

The grounds for the adverse decision in the Missouri case were not new:

We think that a law like the one before us involves neither 1 People v. Klinck Packing Co., 214 N. Y. 121 (1915), sustaining the decision of the appellate division in 164 App. Div. 97.

'Commons & Andrews, Principles of Labor Legislation, p. 283. The Minnesota one-day-of-rest-in-seven law has recently been declared unconstitutional in a lower court because of the many exceptions it afforded: State v. Rand, district court, fourth judicial district, Minnesota, September 9, 1924. See 6 Law and Labor 300.

the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. . . . The case at bar falls directly within

the rules announced in the Lochner case.1

And as the Supreme Court of the United States would have jurisdiction over this case, the principles heretofore announced by the Supreme Court "furnish a rule to govern as well as to guide, hence it follows that the Lochner case must be treated as decisive." 2

Thus in pronouncing invalid the one-day-in-seven legislation, the Missouri court, in 1909, followed the reasoning of the United States Supreme Court, in 1905, regarding the hours of New York bakers, as well as of the New York court of more than twenty years before regarding tenement house cigar manufacture. Nevertheless this decision in Missouri failed to stand as precedent for New York, in 1913, when the rest-day legislation was challenged there, and so far the affirmance of the New York court has not been appealed from.

EXTRA HAZARDOUS INDUSTRIES

Hours of Labor

Parallel with the contests in tribunals over the restriction of working times to give a weekly day of rest, began the series of appeals from the fiat of legislatures in their effort to protect men from being employed an excessive number of hours in extra-hazardous industries. With one exception these statutes were affirmed by state courts. And the 1 Discussed, infra, p. 41.

'State v. Miksicek, 225 Mo. 561 (1909).

affirmance of the Utah decision by the United States Supreme Court marked growing sensitiveness to an economic demand on the part of the judiciary which proved to be as enduring as it was unequivocal.

1. Mines

The congeries of cases in respect to hours worked in hazardous industries began with that of Utah in 1896,1 in review of an act passed in March of that year limiting the hours of men in mines, smelters, and ore-reduction works to to eight a day. Utah had been admitted to statehood in January and with foresight as to the growing needs of industrial workers for state protection, she had expressly included in her constitution an article applying specifically to labor. Thus when the supreme court of the state was asked to pronounce judgment upon the validity of this shortened day, the decision came promptly that the act was constitutional. Two years later, the decision was appealed from to the nation's highest tribunal, and sustained with but two justices dissenting.

The reasoning of the Federal Supreme Court evidenced an appreciation of the peculiar need of protection of underground workers for the preservation of public health and morals as well as of life:

The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employés, and, so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the Federal courts. . . .

But if it be within the power of the legislature to adopt such means for the protection of the lives of its citizens, it is difficult

1 Holden v. Hardy, 14 Utah 71 (1896).