U.S. Supreme Court
LOCHNER v. PEOPLE OF STATE OF NEW YORK, 198 U.S. 45 (1905)
198 U.S. 45
JOSEPH LOCHNER, Plff. in Err.,
v.
PEOPLE OF THE STATE OF NEW YORK.
No. 292.
Argued February 23, 24, 1905.
Decided April 17, 1905.
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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 [198
U.S. 45, 46] law. The section of the statute under which the indictment
was found is 110, and is reproduced in the margin (together with the other
sections of the labor law upon the subject of bakeries, being 111 to 115, both
inclusive).
The indictment averred that the defendant 'wrongfully and unlawfully required
and permitted an employee 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 name act; and therefore, as averred, he committed the crime of
misdemeanor, second offense. The plaintiff in error demurred to the indictment
on several grounds, one of which was that the facts stated did not
' 110, Hours of labor in bakeries and confectionery establishments.-No
employee 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 employee 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 8 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 the room. The manufactured flour
or meal food products shall be kept in dry and airy rooms, so arranged that the
floors, shelves, and all 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 ashpit shall be within, or
connected directly with, the bake room of any bakery, hotel, or public
restaurant. [198 U.S. 45, 47] 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. 120, 76 N. Y. Supp. 396. A
further appeal was then taken to the court of appeals, where the judgment of
conviction was again affirmed. 177 N. Y. 145, 101 Am. St. Rep. 773, 69 N. E.
373.
Messrs. Frank Harvey Field and Henry Weismann (by special leave) for
plaintiff in error.
___ '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 person
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.' [N. Y.
Laws 1897, chap 415.]
[198 U.S. 45, 50]
Mr. Julius M. Mayer for
defendant in error.
[198 U.S. 45, 52]
Mr. Justice Peckham, after making the foregoing statement of the
facts, delivered the opinion of the court:
The indictment, it will be seen, charges that the plaintiff in error violated
the 110th section of article 8, chapter 415, of the Laws of 1897, known as the
labor law of the state of New York, in that he wrongfully and unlawfully
required and permitted an employee working for him to work more than sixty hours
in one week. There is nothing in any of the opinions delivered in this case,
either in the supreme court or the court of appeals of the state, which
construes the section, in using the word 'required,' as referring to any
physical force being used to obtain the labor of an employee. It is assumed that
the word means nothing more than the requirement arising from voluntary contract
for such labor in excess of the number of hours specified in the statute. There
is no pretense in any of the opinions that the statute was intended to meet a
case of involuntary labor in any form. All the opinions assume that there is no
real distinction, so far as this question is concerned, between the words
'required' and 'permitted.' The mandate of the statute, that 'no employee shall
be required or permitted to work,' is the substantial equivalent of an enactment
that 'no employee shall contract or agree to work,' more than ten hours per day;
and, as there is no provision for special emergencies, the statute is mandatory
in all cases. It is not an act merely fixing the number of hours which shall
constitute a legal day's work, but an absolute prohibition upon the employer
permitting, under any circumstances, more than ten hours' work to be done in his
establishment. The employee may desire to earn the extra money which would arise
from his working more than the prescribed [198 U.S. 45,
53] time, but this statute forbids the employer from permitting the
employee to earn it.
The statute necessarily interferes with the right of contract between the
employer and employees, concerning the number of hours in which the latter may
labor in the bakery of the employer. The general right to make a contract in
relation to his business is part of the liberty of the individual protected by
the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana,
165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision
no state can deprive any person of life, liberty, or property without due
process of law. The right to purchase or to sell labor is part of the liberty
protected by this amendment, unless there are circumstances which exclude the
right. There are, however, certain powers, existing in the sovereignty of each
state in the Union, somewhat vaguely termed police powers, the exact description
and limitation of which have not been attempted by the courts. Those powers,
broadly stated, and without, at present, any attempt at a more specific
limitation, relate to the safety, health, morals, and general welfare of the
public. Both property and liberty are held on such reasonable conditions as may
be imposed by the governing power of the state in the exercise of those powers,
and with such conditions the 14th Amendment was not designed to interfere.
Mugler v. Kansas, 123 U.S. 623 , 31 L. ed. 205, 8 Sup. Ct.
Rep. 273; Re Kemmler, 136 U.S. 436 , 34 L. ed. 519, 10 Sup.
Ct. Rep. 930; Crowley v. Christensen, 137 U.S. 86 , 34 L.
ed. 620, 11 Sup. Ct. Rep. 13; Re Converse, 137 U.S. 624 , 34
L. ed. 796, 11 Sup. Ct. Rep. 191.
The state, therefore, has power to prevent the individual from making certain
kinds of contracts, and in regard to them the Federal Constitution offers no
protection. If the contract be one which the state, in the legitimate exercise
of its police power, has the right to prohibit, it is not prevented from
prohibiting it by the 14th Amendment. Contracts in violation of a statute,
either of the Federal or state government, or a contract to let one's property
for immoral purposes, or to do any other unlawful act, could obtain no
protection from the Federal Constitution, as coming under the liberty of
[198 U.S. 45, 54] person or of free contract. Therefore, when the state,
by its legislature, in the assumed exercise of its police powers, has passed an
act which seriously limits the right to labor or the right of contract in regard
to their means of livelihood between persons who are sui juris (both employer
and employee), it becomes of great importance to determine which shall
prevail,-the right of the individual to labor for such time as he may choose, or
the right of the state to prevent the individual from laboring, or from entering
into any contract to labor, beyond a certain time prescribed by the state.
This court has recognized the existence and upheld the exercise of the police
powers of the states in many cases which might fairly be considered as border
ones, and it has, in the course of its determination of questions regarding the
asserted invalidity of such statutes, on the ground of their violation of the
rights secured by the Federal Constitution, been guided by rules of a very
liberal nature, the application of which has resulted, in numerous instances, in
upholding the validity of state statutes thus assailed. Among the later cases
where the state law has been upheld by this court is that of Holden v. Hardy,
169 U.S. 366 , 42 L. ed. 780, 18 Sup. Ct. Rep. 383. A provision in the
act of the legislature of Utah was there under consideration, the act limiting
the employment of workmen in all underground mines or workings, to eight hours
per day, 'except in cases of emergency, where life or property is in imminent
danger.' It also limited the hours of labor in smelting and other institutions
for the reduction or refining of ores or metals to eight hours per day, except
in like cases of emergency. The act was held to be a valid exercise of the
police powers of the state. A review of many of the cases on the subject,
decided by this and other courts, is given in the opinion. It was held that the
kind of employment, mining, smelting, etc., and the character of the employees
in such kinds of labor, were such as to make it reasonable and proper for the
state to interfere to prevent the employees from being constrained by the rules
laid down by the proprietors in regard to labor. The following citation
[198 U.S. 45, 55] from the observations of the supreme court of Utah in
that case was made by the judge writing the opinion of this court, and approved:
'The law in question is confined to the protection of that class of people
engaged in labor in underground mines, and in smelters and other works wherein
ores are reduced and refined. This law applies only to the classes subjected by
their employment to the peculiar conditions and effects attending underground
mining and work in smelters, and other works for the reduction and refining of
ores. Therefore it is not necessary to discuss or decide whether the legislature
can fix the hours of labor in other employments.'
It will be observed that, even with regard to that class of labor, the Utah
statute provided for cases of emergency wherein the provisions of the statute
would not apply. The statute now before this court has no emergency clause in
it, and, if the statute is valid, there are no circumstances and no emergencies
under which the slightest violation of the provisions of the act would be
innocent. There is nothing in Holden v. Hardy which covers the case now before
us. Nor does Atkin v. Kansas, 191 U.S. 207 , 48 L. ed. 148,
24 Sup. Ct. Rep. 124, touch the case at bar. The Atkin Case was decided upon the
right of the state to control its municipal corporations, and to prescribe the
conditions upon which it will permit work of a public character to be done for a
municipality. Knoxville Iron Co. v. Harbison, 183 U.S. 13 ,
46 L. ed. 55, 22 Sup. Ct. Rep. 1, is equally far from an authority for this
legislation. The employees in that case were held to be at a disadvantage with
the employer in matters of wages, they being miners and coal workers, and the
act simply provided for the cashing of coal orders when presented by the miner
to the employer.
The latest case decided by this court, involving the police power, is that of
Jacobson v. Massachusetts, decided at this term and reported in 197
U.S. 11 , 25 Sup. Ct. Rep. 358, 49 L. ed.--. It related to compulsory
vaccination, and the law was held vaild as a proper exercise of the police
powers with reference to the public health. It was stated in the opinion that it
was a case 'of an adult who, for aught that appears, was himself in perfect
health and a fit [198 U.S. 45, 56] subject of
vaccination, and yet, while remaining in the community, refused to obey the
statute and the regulation, adopted in execution of its provisions, for the
protection of the public health and the public safety, confessedly endangered by
the presence of a dangerous disease.' That case is also far from covering the
one now before the court.
Petit v. Minnesota, 177 U.S. 164 , 44 L. ed. 716, 20 Sup.
Ct. Rep. 666, was upheld as a proper exercise of the police power relating to
the observance of Sunday, and the case held that the legislature had the right
to declare that, as matter of law, keeping barber shops open on Sunday was not a
work of necessity or charity.
It must, of course, be conceded that there is a limit to the valied exercise
of the police power by the state. There is no dispute concerning this general
proposition. Otherwise the 14th Amendment would have no efficacy and the
legislatures of the states would have unbounded power, and it would be enough to
say that any piece of legislation was enacted to conserve the morals, the
health, or the safety of the people; such legislation would be valid, no matter
how absolutely without foundation the claim might be. The claim of the police
power would be a mere pretext,- become another and delusive name for the supreme
sovereignty of the state to be exercised free from constitutional restraint.
This is not contended for. In every case that comes before this court,
therefore, where legislation of this character is concerned, and where the
protection of the Federal Constitution is sought, the question necessarily
arises: Is this a fair, reasonable, and appropriate exercise of the police power
of the state, or is it an unreasonable, unnecessary, and arbitrary interference
with the right of the individual to his personal liberty, or to enter into those
contracts in relation to labor which may seem to him appropriate or necessary
for the support of himself and his family? Of course the 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.
This is not a question of substituting the judgment of the
[198 U.S. 45, 57] court for that of the legislature. If the act be within
the power of the state it is valid, although the judgment of the court might be
totally opposed to the enactment of such a law. But the question would still
remain: Is it within the police power of the state? and that question must be
answered by the court.
The question whether this act is valid as a labor law, pure and simple, may
be dismissed in a few words. There is no reasonable ground for interfering with
the liberty of person or the right of free contract, by determining the hours of
labor, in the occupation of a baker. There is no contention that bakers as a
class are not equal in intelligence and capacity to men in other trades or
manual occupations, or that they are not able to assert their rights and care
for themselves without the protecting arm of the state, interfering with their
independence of judgment and of action. They are in no sense wards of the state.
Viewed in the light of a purely labor law, with no reference whatever to the
question of health, we think that a law like the one before us involves neither
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. It does not affect any other portion of
the public than those who are engaged in that occupation. Clean and wholesome
bread does not depend upon whether the baker works but ten hours per day or only
sixty hours a week. The limitation of the hours of labor does not come within
the police power on that ground.
It is a question of which of two powers or rights shall prevail,-the power of
the state to legislate or the right of the individual to liberty of person and
freedom of contract. The mere assertion that the subject relates, though but in
a remote degree, to the public health, does not necessarily render the enactment
valid. The act must have a more direct relation, as a means to an end, and the
end itself must be appropriate and legitimate, before an act can be held to be
valid which interferes [198 U.S. 45, 58] with the
general right of an individual to be free in his person and in his power to
contract in relation to his own labor.
This case has caused much diversity of opinion in the state courts. In the
supreme court two of the five judges composing the court dissented from the
judgment affirming the validity of the act. In the court of appeals three of the
seven judges also dissented from the judgment upholding the statute. Although
found in what is called a labor law of the state, the court of appeals has
upheld the act as one relating to the public health,-in other words, as a health
law. One of the judges of the court of appeals, in upholding the law, stated
that, in his opinion, the regulation in question could not be sustained unless
they were able to say, from common knowledge, that working in a bakery and candy
factory was an unhealthy employment. The judge held that, while the evidence was
not uniform, it still led him to the conclusion that the occupation of a baker
or confectioner was unhealthy and tended to result in diseases of the
respiratory organs. Three of the judges dissented from that view, and they
thought the occupation of a baker was not to such an extent unhealthy as to
warrant the interference of the legislature with the liberty of the individual.
We think the limit of the police power has been reached and passed in this
case. There is, in our judgment, no reasonable foundation for holding this to be
necessary or appropriate as a health law to safeguard the public health, or the
health of the individuals who are following the trade of a baker. If this
statute be valid, and if, therefore, a proper case is made out in which to deny
the right of an individual, sui juris, as employer or employee, to make
contracts for the labor of the latter under the protection of the provisions of
the Federal Constitution, there would seem to be no length to which legislation
of this nature might not go. The case differs widely, as we have already stated,
from the expressions of this court in regard to laws of this nature, as stated
in Holden v. Hardy, 169 U.S. 366 , 42 L. ed. 780, 18 Sup.
Ct. Rep. 383, and Jacobson v. Massachusetts, 197 U.S. 11 ,
25 Sup. Ct. Rep. 358, 49 L. ed.--. [198 U.S. 45, 59]
We think that there can be no fair doubt that the trade of a baker, in and of
itself, is not an unhealthy one to that degree which would authorize the
legislature to interfere with the right to labor, and with the right of free
contract on the part of the individual, either as employer or employee In
looking through statistics regarding all trades and occupations, it may be true
that the trade of a baker does not appear to be as healthy as some other trades,
and is also vastly more healthy than still others. To the common understanding
the trade of a baker has never been regarded as an unhealthy one. Very likely
physicians would not recommend the exercise of that or of any other trade as a
remedy for ill health. Some occupations are more healthy than others, but we
think there are none which might not come under the power of the legislature to
supervise and control the hours of working therein, if the mere fact that the
occupation is not absolutely and perfectly healthy is to confer that right upon
the legislative department of the government. It might be safely affirmed that
almost all occupations more or less affect the health. There must be more than
the mere fact of the possible existence of some small amount of unhealthiness to
warrant legislative interference with liberty. It is unfortunately true that
labor, even in any department, may possibly carry with it the seeds of
unhealthiness. But are we all, on that account, at the mercy of legislative
majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a
dry goods clerk, a bank's, a lawyer's, or a physician's clerk, or a clerk in
almost any kind of business, would all come under the power of the legislature,
on this assumption. No trade, no occupation, no mode of earning one's living,
could escape this all-pervading power, and the acts of the legislature in
limiting the hours of labor in all employments would be valid, although such
limitation might seriously cripple the ability of the laborer to support himself
and his family. In our large cities there are many buildings into which the sun
penetrates for but a short time in each day, and these buildings are occupied by
people carrying on the [198 U.S. 45, 60] business
of bankers, brokers, lawyers, real estate, and many other kinds of business,
aided by many clerks, messengers, and other employees. Upon the assumption of
the validity of this act under review, it is not possible to say that an act,
prohibiting lawyers' or bank clerks, or others, from contracting to labor for
their employers more than eight hours a day would be invalid. It might be said
that it is unhealthy to work more than that number of hours in an apartment
lighted by artificial light during the working hours of the day; that the
occupation of the bank clerk, the lawyer's clerk, the real estate clerk, or the
broker's clerk, in such offices is therefore unhealthy, and the legislature, in
its paternal wisdom, must, therefore, have the right to legislate on the subject
of, and to limit, the hours for such labor; and, if it exercises that power, and
its validity be questioned, it is sufficient to say, it has reference to the
public health; it has reference to the health of the employees condemned to
labor day after day in buildings where the sun never shines; it is a health law,
and therefore it is valid, and cannot be questioned by the courts.
It is also urged, pursuing the same line of argument, that it is to the
interest of the state that its population should be strong and robust, and
therefore any legislation which may be said to tend to make people healthy must
be valid as health laws, enacted under the police power. If this be a valid
argument and a justification for this kind of legislation, it follows that the
protection of the Federal Constitution from undue interference with liberty of
person and freedom of contract is visionary, wherever the law is sought to be
justified as a valid exercise of the police power. Scarcely any law but might
find shelter under such assumptions, and conduct, properly so called, as well as
contract, would come under the restrictive sway of the legislature. Not only the
hours of employees, but the hours of employers, could be regulated, and doctors,
lawyers, scientists, all professional men, as well as athletes and artisans,
could be forbidden to fatigue their brains and bodies by prolonged hours of
exercise, lest the fighting strength [198 U.S. 45, 61]
of the state be impaired. We mention these extreme cases because the contention
is extreme. We do not believe in the soundness of the views which uphold this
law. On the contrary, we think that such a law as this, although passed in the
assumed exercise of the police power, and as relating to the public health, or
the health of the employees named, is not within that power, and is invalid. The
act is not, within any fair meaning of the term, a health law, but is an illegal
interference with the rights of individuals, both employers and employees, to
make contracts regarding labor upon such terms as they may think best, or which
they may agree upon with the other parties to such contracts. Statutes of the
nature of that under review, limiting the hours in which grown and intelligent
men may labor to earn their living, are mere meddlesome interferences with the
rights of the individual, and they are not asved from condemnation by the claim
that they are passed in the exercise of the police power and upon the subject of
the health of the individual whose rights are interfered with, unless there be
some fair ground, reasonable in and of itself, to say that there is material
danger to the public health, or to the health of the employees, if the hours of
labor are not curtailed. If this be not clearly the case, the individuals whose
rights are thus made the subject of legislative interference are under the
protection of the Federal Constitution regarding their liberty of contract as
well as of person; and the legislature of the state has no power to limit their
right as proposed in this statute. All that it could properly do has been done
by it with regard to the conduct of bakeries, as provided for in the other
sections of the act, above set forth. These several sections provide for the
inspection of the premises where the bakery is carried on, with regard to
furnishing proper wash rooms and waterclosets, apart from the bake room, also
with regard to providing proper drainage, plumbing, and painting; the sections,
in addition, provide for the height of the ceiling, the cementing or tiling of
floors, where necessary in the opinion of the factory inspector, and for other
things of [198 U.S. 45, 62] that nature;
alterations are also provided for, and are to be made where necessary in the
opinion of the inspector, in order to comply with the provisions of the statute.
These various sections may be wise and valid regulations, and they certainly go
to the full extent of providing for the cleanliness and the healthiness, so far
as possible, of the quarters in which bakeries are to be conducted. Adding to
all these requirements a prohibition to enter into any contract of labor in a
bakery for more than a certain number 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.
It was further urged on the argument that restricting the hours of labor in
the case of bakers was valid because it tended to cleanliness on the part of the
workers, as a man was more apt to be cleanly when not overworked, and if cleanly
then his 'output' was also more likely to be so. What has already been said
applies with equal force to this contention. We do not admit the reasoning to be
sufficient to justify the claimed right of such interference. The state in that
case would assume the position of a supervisor, or pater familias, over every
act of the individual, and its right of governmental interference with his hours
of labor, his hours of exercise, the character thereof, and the extent to which
it shall be carried would be recognized and upheld. 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
workman. 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. When assertions such as
we have adverted to become necessary in order to give, if possible, a plausible
foundation for the contention that the law is a 'health law,'
[198 U.S. 45, 63] it gives rise to at least a suspicion that there was
some other motive dominating the legislature than the purpose to subserve the
public health or welfare.
This interference on the part of the legislatures of the several states with
the ordinary trades and occupations of the people seems to be on the increase.
In the supreme court of New York, in the case of People v. Beattie, appellate
division, first department, decided in 1904 (96 App. Div. 383, 89 N. Y. Supp.
193), a statute regulating the trade of horseshoeing, and requiring the person
practising such trade to be examined, and to obtain a certificate from a board
of examiners and file the same with the clerk of the county wherein the person
proposes to practise such trade, was held invalid, as an arbitrary interference
with personal liberty and private property without due process of law. The
attempt was made, unsuccessfully, to justify it as a health law.
The same kind of a statute was held invalid (Re Aubry) by the supreme court
of Washington in December, 1904. 78 Pac. 900. The court held that the act
deprived citizens of their liberty and property without due process of law, and
denied to them the equal protection of the laws. It also held that the trade of
a horseshoer is not a subject of regulation under the police power of the state,
as a business concerning and directly affecting the health, welfare, or comfort
of its inhabitants; and that, therefore, a law which provided for the
examination and registration of horseshoers in certain cities was
unconstitutional, as an illegitimate exercise of the police power.
The supreme court of Illinois, in Bessette v. People, 193 Ill. 334, 56 L. R.
A. 558, 62 N. E. 215, also held that a law of the same nature, providing for the
regulation and licensing of horseshoers, was unconstitutional as an illegal
interference with the liberty of the individual in adopting and pursuing such
calling as he may choose, subject only to the restraint necessary to secure the
common welfare. See also Godcharles v. Wigeman, 113 Pa. 431, 437, 6 Atl. 354;
Low v. Rees Printing Co. 41 Neb. 127, 145, 24 L. R. A. 702, 43 Am. St. Rep. 670,
59 N. W. 362. In [198 U.S. 45, 64] these cases the
courts upheld the right of free contract and the right to purchase and sell
labor upon such terms as the parties may agree to.
It is impossible for us to shut our eyes to the fact that many of the laws of
this character, while passed under what is claimed to be the police power for
the purpose of protecting the public health or welfare, are, in reality, passed
from other motives. We are justified in saying so when, from the character of
the law and the subject upon which it legislates, it is apparent that the public
health or welfare bears but the most remote relation to the law. The purpose of
a statute must be determined from the natural and legal effect of the language
employed; and whether it is or is not repugnant to the Constitution of the
United States must be determined from the natural effect of such statutes when
put into operation, and not from their proclaimed purpose. Minnesota v. Barber,
136 U.S. 313 , 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep.
862; Brimmer v. Rebman, 138 U.S. 78 , 34 L. ed. 862, 3
Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213. The court looks beyond the mere
letter of the law in such cases. Yick Wo v. Hopkins, 118 U.S. 356
, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064
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 employees (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.
The judgment of the Court of Appeals of New York, as well as that of the
Supreme Court and of the County Court of Oneida County, must be reversed and the
case remanded to [198 U.S. 45, 65] the County Court
for further proceedings not inconsistent with this opinion.
REVERSED.
Mr. Justice Harlan (with whom Mr. Justice White and Mr. Justice Day
concurred) dissenting:
While this court has not attempted to mark the precise boundaries of what is
called the police power of the state, the existence of the power has been
uniformly recognized, equally by the Federal and State courts.
All the cases agree that this power extends at least to the protection of the
lives, the health, and the safety of the public against the injurious exercise
by any citizen of his own rights.
In Patterson v. Kentucky, 97 U.S. 501 , 24 L. ed. 1115,
after referring to the general principle that rights given by the Constitution
cannot be impaired by state legislation of any kind, this court said: 'It [ this
court] has, nevertheless, with marked distinctness and uniformity, recognized
the necessity, growing out of the fundamental conditions of civil society, of
upholding state police regulations which were enacted in good faith, and had
appropriate and direct connection with that protection to life, health, and
property which each state owes to her citizens.' So in Barbier v. Connolly,
113 U.S. 27 , 28 L. ed. 923, 5 Sup. Ct. Rep. 357: 'But neither the [14th]
Amendment, -broad and comprehensive as it is,-nor any other amendment, was
designed to interfere with the power of the state, sometimes termed its police
power, to prescribe regulations to promote the health, peace, morals, education,
and good order of the people.'
Speaking generally, the state, in the exercise of its powers, may not unduly
interfere with the right of the citizen to enter into contracts that may be
necessary and essential in the enjoyment of the inherent rights belonging to
everyone, among which rights is the right 'to be free in the enjoyment of all
his faculties, to be free to use them in all lawful ways, to live and work where
he will, to earn his livelihood by any lawful calling, to pursue any livelihood
or avocation.' This was de- [198 U.S. 45, 66]
clared in Allgeyer v. Louisiana, 165 U.S. 578, 589 , 41 S.
L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431. But in the same case it was conceded
that the right to contract in relation to persons and property, or to do
business, within a state, may be 'regulated, and sometimes prohibited, when the
contracts or business conflict with the policy of the state as contained in its
statutes.' (p. 591, L. ed. p. 836, Sup. Ct. Rep. p. 432.)
So, as said in Holden v. Hardy, 169 U.S. 366, 391 , 42 S.
L. ed. 780, 790, 18 Sup. Ct. Rep. 383, 388: 'This right of contract, however, is
itself subject to certain limitations which the state may lawfully impose in the
exercise of its police powers. While this power is inherent in all governments,
it has doubtless been greatly expanded in its application during the past
century, owing to an enormous increase in the number of occupations which are
dangerous, or so far detrimental, to the health of employees as to demand
special precautions for their well-being and protection, or the safety of
adjacent property. While this court has held, notably in the cases Davidson v.
New Orleans, 96 U.S. 97 , 24 L. ed. 616, and Yick Wo. v.
Hopkins, 118 U.S. 356 , 30 L. ed. 220, 6 Sup. Ct. Rep. 1064,
that the police power cannot be put forward as an excuse for oppressive and
unjust legislation, it may be lawfully resorted to for the purpose of preserving
the public health, safety, or morals, or the abatement of public nuisances; and
a large discretion 'is necessarily vested in the legislature to determine, not
only what the interests of the public required, but what measures are necessary
for the protection of such interests.' Lawton v. Steele, 152 U.S.
133, 136 , 38 S. L. ed. 385, 388, 14 Sup. Ct. Rep. 499, 501.' Referring
to the limitations placed by the state upon the hours of workmen, the court in
the same case said (p. 395, L. ed. p. 792, Sup. Ct. Rep. p. 389): 'These
employments, when too long pursued, the legislature has judged to be detrimental
to the health of the employees, 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.'
Subsequently, in Gundling v. Chicago, 177 U.S. 183, 188 ,
44 S. L. ed. 725, 728, 20 Sup. Ct. Rep. 633, 635, this court said: 'Regulations
respecting the pursuit of a lawful trade or business are of very frequent
occurrence in the various cities of the country, and what such regulations shall
be and [198 U.S. 45, 67] to what particular trade,
business, or occupation they shall apply, are questions for the state to
determine, and their determination comes within the proper exercise of the
police power by the state, and, unless the regulations are so utterly
unreasonable and extravagant in their nature and purpose that the property and
personal rights of the citizen are unnecessarily, and in a manner wholly
arbitrary, interfered with or destroyed without due process of law, they do not
extend beyond the power of the state to pass, and they form no subject for
Federal interference. As stated in Crowley v. Christensen, 137 U.S.
86 , 34 L. ed. 620, 11 Sup. Ct. Rep. 13, 'the possession and enjoyment of
all rights are subject to such reasonable conditions as may be deemed by the
governing authority of the country essential to the safety, health, peace, good
order, and morals of the community."
In St. Louis I. M. & S. R. Co. v. Paul, 173 U.S. 404, 409
, 43 S. L. ed. 746, 748, 19 Sup. Ct. Rep. 419, and in Knoxville Iron Co. v.
Harbison, 183 U.S. 13, 21 , 22 S., 46 L. ed. 55, 61, 22 Sup.
Ct. Rep. 1, it was distinctly adjudged that the right of contract was not
'absolute, but may be subjected to the restraints demanded by the safety and
welfare of the state.' Those cases illustrate the extent to which the state may
restrict or interfere with the exercise of the right of contracting.
The authorities on the same line are so numerous that further citations are
unnecessary.
I take it to be firmly established that what is called the liberty of
contract may, within certain limits, be subjected to regulations designed and
calculated to promote the general welfare, or to guard the public health, the
public morals, or the public safety. 'The liberty secured by the Constitution of
the United States to every person within its jurisdiction does not import.' this
court has recently said, 'an absolute right in each person to be at all times
and in all circumstances wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the common good.'
Jacobson v. Massachusetts, 197 U.S. 11 , 25 Sup. Ct. Rep.
358, 49 L. ed. [198 U.S. 45, 68] Granting, then,
that there is a liberty of contract which cannot be violated even under the
sanction of direct legislative enactment, but assuming, as according to settled
law we may assume, that such liberty of contract is subject to such regulations
as the state may reasonably prescribe for the common good and the well-being of
society, what are the conditions under which the judiciary may declare such
regulations to be in excess of legislative authority and void? Upon this point
there is no room for dispute; for the rule is universal that a legislative
enactment, Federal or state, is never to be disregarded or held invalid unless
it be, beyond question, plainly and palpably in excess of legislative power. In
Jacobson v. Massachusetts, 197 U.S. 11 , 25 Sup. Ct. Rep.
358, 49 L. ed . --, we said that the power of the courts to review legislative
action in respect of a matter affecting the general welfare exists only 'when
that which the legislature has done comes within the rule that, if a statute
purporting to have been enacted to protect the public health, the public morals,
or the public safety has no real or substantial relation to those objects, or
is, beyond all question, a plain, palpable invasion of rights secured by the
fundamental law,' citing Mugler v. Kansas, 123 U.S. 623, 661
, 31 S. L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota v. Barber,
136 U.S. 313, 320 , 34 S. L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10
Sup. Ct. Rep. 862; Atkin v. Kansas, 191 U.S. 207, 223 , 48
S. L. ed. 148, 158, 24 Sup. Ct. Rep. 124. If there be doubt as to the validity
of the statute, that doubt must therefore be resolved in favor of its validity,
and the courts must keep their hands off, leaving the legislature to meet the
responsibility for unwise legislation. If the end which the legislature seeks to
accomplish be one to which its power extends, and if the means employed to that
end, although not the wisest or best, are yet not plainly and palpably
unauthorized by law, then the court cannot interfere. In other words, when the
validity of a statute is questioned, the burden of proof, so to speak, is upon
those who assert it to be unconstitutional. M'Culloch v. Maryland, 4 Wheat. 316,
421, 4 L. ed. 579, 605.
Let these principles be applied to the present case. By the statute in
question it is provided that 'no employee shall be required, or permitted, to
work in a biscuit, bread, or cake [198 U.S. 45, 69]
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 employee shall work.'
It is plain that this statute was enacted in order to protect the physical
well-being of those who work in bakery and confectionery establishments. It may
be that the statute had its origin, in part, in the belief that employers and
employees in such establishments were not upon an equal footing, and that the
necessities of the latter often compelled them to submit to such exactions as
unduly taxed their strength. Be this as it may, the statute must be taken as
expressing the belief of the people of New York that, as a general rule, and in
the case of the average man, labor in excess of sixty hours during a week in
such establishments may endanger the health of those who thus labor. Whether or
not this be wise legislation it is not the province of the court to inquire.
Under our systems of government the courts are not concerned with the wisdom or
policy of legislation. So that, in determining the question of power to
interfere with liberty of contract, the court may inquire whether the means
devised by the state are germane to an end which may be lawfully accomplished
and have a real or substantial relation to the protection of health, as involved
in the daily work of the persons, male and female, engaged in bakery and
confectionery establishments. But when this inquiry is entered upon I find it
impossible, in view of common experience, to say that there is here no real or
substantial relation between the means employed by the state and the end sought
to be accomplished by its legislation. Mugler v. Kansas, 123 U.S.
623, 661 , 31 S. L. ed. 205, 210, 8 Sup. Ct. Rep. 273. Nor can I say that
the statute has no appropriate or direct connection with that protection to
health which each state owes to her citizens (Patterson v. Kentucky,
97 U.S. 501 , 24 L. ed. 1115); or that it is not promotive of the health
of the employees in question ( Holden v. Hardy, 169 U.S. 366, 391
, 42 S. L. ed. 780, 790, 18 Sup. Ct. Rep. 383; Lawton v. Steele,
152 U.S. 133, 139 , 38 S. L. ed. 385, 389, 14 Sup. Ct. Rep. 499);
[198 U.S. 45, 70] or that the regulation prescribed by the state is
utterly unreasonable and extravagant or wholly arbitrary (Gundling v. Chicago,
177 U.S. 183, 188 , 44 S. L. ed. 725, 728, 20 Sup. Ct. Rep. 633). Still
less can I say that the statute is, beyond question, a plain, palpable invasion
of rights secured by the fundamental law. Jacobson v. Massachusetts,
196 U.S. 11 , ante, p. 358, 25 Sup. Ct. Rep. 358. Therefore I submit that
this court will transcend its functions if it assumes to annul the statute of
New York. It must be remembered that this statute does not apply to all kinds of
business. It applies only to work in bakery and confectionery establishments, in
which, as all know, the air constantly breathed by workmen is not as pure and
healthful as that to be found in some other establishments or out of doors.
Professor Hirt in his treatise on the 'Diseases of the Workers' has said:
'The labor of the bakers is among the hardest and most laborious imaginable,
because it has to be performed under conditions injurious to the health of those
engaged in it. It is hard, very hard, work, not only because it requires a great
deal of physical exertion in an overheated workshop and during unreasonably long
hours, but more so because of the erratic demands of the public, compelling the
baker to perform the greater part of his work at night, thus depriving him of an
opportunity to enjoy the necessary rest and sleep,-a fact which is highly
injurious to his health.' Another writer says: 'The constant inhaling of flour
dust causes inflammation of the lungs and of the bronchial tubes. The eyes also
suffer through this dust, which is responsible for the many cases of running
eyes among the bakers. The long hours of toil to which all bakers are subjected
produce rheumatism, cramps, and swollen legs. The intense heat in the workshops
induces the workers to resort to cooling drinks, which, together with their
habit of exposing the greater part of their bodies to the change in the
atmosphere, is another source of a number of diseases of various organs. Nearly
all bakers are palefaced and of more delicate health than the workers of other
crafts, which is chiefly due to their hard work and their irregular and
unnatural mode of living, whereby the power of resistance against disease is
[198 U.S. 45, 71] greatly diminished. The average age of a baker is below
that of other workmen; they seldom live over their fiftieth year, most of them
dying between the ages of forty and fifty. During periods of epidemic diseases
the bakers are generally the first to succumb to the disease, and the number
swept away during such periods far exceeds the number of other crafts in
comparison to the men employed in the respective industries. When, in 1720, the
plague visited the city of Marseilles, France, every baker in the city succumbed
to the epidemic, which caused considerable excitement in the neighboring cities
and resulted in measures for the sanitary protection of the bakers.'
In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor
it is stated that among the occupations involving exposure to conditions that
interfere with nutrition is that of a baker. (p. 52.) In that Report it is also
stated that, 'from a social point of view, production will be increased by any
change in industrial organization which diminishes the number of idlers,
paupers, and criminals. Shorter hours of work, by allowing higher standards of
comfort and purer family life, promise to enhance the industrial efficiency of
the wage-working class,-improved health, longer life, more content and greater
intelligence and inventiveness.' (p. 82.)
Statistics show that the average daily working time among workingmen in
different countries is, in Australia, eight hours; in Great Britain, nine; in
the United States, nine and three-quarters; in Denmark, nine and three-quarters;
in Norway, ten; Sweden, France, and Switzerland, ten and one-half; Germany, ten
and one-quarter; Belgium, Italy, and Austria, eleven; and in Russia, twelve
hours.
We judicially know that the question of the number of hours during which a
workman should continuously labor has been, for a long period, and is yet, a
subject of serious consideration among civilized peoples, and by those having
special knowledge of the laws of health. Suppose the statute prohibited labor in
bakery and confectionery establishments in excess of eighteen hours each day. No
one, I take it, could dispute the power of the state to enact such a statute.
But the statute [198 U.S. 45, 72] before us does
not embrace extreme or exceptional cases. It may be said to occupy a middle
ground in respect of the hours of labor. What is the true ground for the state
to take between legitimate protection, by legislation, of the public health and
liberty of contract is not a question easily solved, nor one in respect of which
there is or can be absolute certainty. There are very few, if any, questions in
political economy about which entire certainty may be predicated. One writer on
relation of the state to labor has well said: 'The manner, occasion, and degree
in which the state may interfere with the industrial freedom of its citizens is
one of the most debatable and difficult questions of social science.' Jevons,
33.
We also judicially know that the number of hours that should constitute a
day's labor in particular occupations involving the physical strength and safety
of workmen has been the subject of enactments by Congress and by nearly all of
the states. Many, if not most, of those enactments fix eight hours as the proper
basis of a day's labor.
I do not stop to consider whether any particular view of this economic
question presents the sounder theory. What the precise facts are it may be
difficult to say. It is enough for the determination of this case, and it is
enough for this court to know, that the question is one about which there is
room for debate and for an honest difference of opinion. There are many reasons
of a weighty, substantial character, based upon the experience of mankind, in
support of the theory that, all things considered, more than ten hours' steady
work each day, from week to week, in a bakery or confectionery establishment,
may endanger the health and shorten the lives of the workmen, thereby
diminishing their physical and mental capacity to serve the state and to provide
for those dependent upon them.
If such reasons exist that ought to be the end of this case, for the state is
not amenable to the judiciary, in respect of its legislative enactments, unless
such enactments are plainly, palpably, beyond all question, inconsistent with
the Constitu- [198 U.S. 45, 73] tion of the United
States. We are not to presume that the state of New York has acted in bad faith.
Nor can we assume that its legislature acted without due deliberation, or that
it did not determine this question upon the fullest attainable information and
for the common good. We cannot say that the state has acted without reason, nor
ought we to proceed upon the theory that its action is a mere sham. Our duty, I
submit, is to sustain the statute as not being in conflict with the Federal
Constitution, for the reason-and such is an all-sufficient reason-it is not
shown to be plainly and palpably inconsistent with that instrument. Let the
state alone in the management of its purely domestic affairs, so long as it does
not appear beyond all question that it has violated the Federal Constitution.
This view necessarily results from the principle that the health and safety of
the people of a state are primarily for the state to guard and protect.
I take leave to say that the New York statute, in the particulars here
involved, cannot be held to be in conflict with the 14th Amendment, without
enlarging the scope of the amendment far beyond its original purpose, and
without bringing under the supervision of this court matters which have been
supposed to belong exclusively to the legislative departments of the several
states when exerting their conceded power to guard the health and safety of
their citizens by such regulations as they in their wisdom deem best. Health
laws of every description constitute, said Chief Justice Marshall, a part of
that mass of legislation which 'embraces everything within the territory of a
state, not surrendered to the general government; all which can be most
advantageously exercised by the states themselves.' Gibbons v. Ogden, 9 Wheat.
1, 203, 6 L. ed. 23, 71. A decision that the New York statute is void under the
14th Amendment will, in my opinion, involve consequences of a far-reaching and
mischievous character; for such a decision would seriously cripple the inherent
power of the states to care for the lives, health, and wellbeing of their
citizens. Those are matters which can be best controlled by the states.
[198 U.S. 45, 74] The preservation of the just powers of the states is
quite as vital as the preservation of the powers of the general government.
When this court had before it the question of the constitutionality of a
statute of Kansas making it a criminal offense for a contractor for public work
to permit or require his employees to perform labor upon such work in excess of
eight hours each day, it was contended that the statute was in derogation of the
liberty both of employees and employer. It was further contended that the Kansas
statute was mischievous in its tendencies. This court, while disposing of the
question only as it affected public work, held that the Kansas statute was not
void under the 14th Amendment. But it took occasion to say what may well be here
repeated: 'The responsibility therefor rests upon legislators, not upon the
courts. No evils arising from such legislation could be more far reaching than
those that might come to our system of government if the judiciary, abandoning
the sphere assigned to it by the fundamental law, should enter the domain of
legislation, and upon grounds merely of justice or reason or wisdom annul
statutes that had received the sanction of the people's representatives. We are
reminded by counsel that it is the solemn duty of the courts in cases before
them to guard the constitutional rights of the citizen against merely arbitrary
power. That is unquestionably true. But it is equally true-indeed, the public
interests imperatively demand-that legislative enactments should be recognized
and enforced by the courts as embodying the will of the people, unless they are
plainly and palpably beyond all question in violation of the fundamental law of
the Constitution.' Atkin v. Kansas, 191 U.S. 207, 223 , 48
S. L. ed. 148, 158, 24 Sup. Ct. Rep. 124, 128.
The judgment, in my opinion, should be affirmed.
Mr. Justice Holmes dissenting:
I regret sincerely that I am unable to agree with the judg-
[198 U.S. 45, 75] ment in this case, and that I think it my duty to
express my dissent.
This case is decided upon an economic theory which a large part of the
country does not entertain. If it were a question whether I agreed with that
theory, I should desire to study it further and long before making up my mind.
But I do not conceive that to be my duty, because I strongly believe that my
agreement or disagreement has nothing to do with the right of a majority to
embody their opinions in law. It is settled by various decisions of this court
that state constitutions and state laws may regulate life in many ways which we
as legislators might think as injudicious, or if you like as tyrannical, as
this, and which, equally with this, interfere with the liberty to contract.
Sunday laws and usury laws are ancient examples. A more modern one is the
prohibition of lotteries. The liberty of the citizen to do as he likes so long
as he does not interfere with the liberty of others to do the same, which has
been a shibboleth for some well-known writers, is interfered with by school
laws, by the Postoffice, by every state or municipal institution which takes his
money for purposes thought desirable, whether he likes it or not. The 14th
Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we
sustained the Massachusetts vaccination law. Jacobson v. Massachusetts,
197 U.S. 11 , 25 Sup. Ct. Rep. 358, 49 L. ed. _____ United States and
state statutes and decisions cutting down the liberty to contract by way of
combination are familiar to this court. Northern Securities Co. v. United
States, 193 U.S. 197 , 48 L. ed. 679, 24 Sup. Ct. Rep. 436.
Two years ago we upheld the prohibition of sales of stock on margins, or for
future delivery, in the Constitution of California. Otis v. Parker,
187 U.S. 606 , 47 L. ed. 323, 23 Sup. Ct. Rep. 168. The decision
sustaining an eight-hour law for miners is still recent. Holden v. Hardy,
169 U.S. 366 , 42 L. ed. 780, 18 Sup. Ct. Rep. 383. Some of these laws
embody convictions or prejudices which judges are likely to share. Some may not.
But a Constitution is not intended to embody a particular economic theory,
whether of paternalism and the organic relation of the citizen to the state or
of laissez faire. [198 U.S. 45, 76] It is made for
people of fundamentally differing views, and the accident of our finding certain
opinions natural and familiar, or novel, and even shocking, ought not to
conclude our judgment upon the question whether statutes embodying them conflict
with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend
on a judgment or intuition more subtle than any articulate major premise. But I
think that the proposition just stated, if it is accepted, will carry us far
toward the end. Every opinion tends to become a law. I think that the word
'liberty,' in the 14th Amendment, is perverted when it is held to prevent the
natural outcome of a dominant opinion, unless it can be said that a rational and
fair man necessarily would admit that the statute proposed would infringe
fundamental principles as they have been understood by the traditions of our
people and our law. It does not need research to show that no such sweeping
condemnation can be passed upon the statute before us. A reasonable man might
think it a proper measure on the score of health. Men whom I certainly could not
pronounce unreasonable would uphold it as a first installment of a general
regulation of the hours of work. Whether in the latter aspect it would be open
to the charge of inequality I think it unnecessary to discuss.