The relator appeals to Lochner v. New York, 198 U. S. 45. This is the famous bake shop case. It holds that the State of New York cannot limit the hours of employees in bakeries to ten hours a day without infringing the liberty of the individual to contract for his labor guaranteed by the Fourteenth Amendment. The case is exceedingly interesting. It arose in the County Court of Oneida county in this State and progressed through the Appellate Division of the Supreme Court, the Court of Appeals and the United States Supreme Court. Twenty-two judges participated in the several decisions. The only unanimous decision was by the County Court, where there was but one judge. In the Appellate Division, the justices divided three to two; in the Court of Appeals, four to three; and in the United States Supreme Court, five to four. There were nine separate opinions written. Of the twenty-two judges, twelve were of the opinion that the law was constitutional, and ten that it was not. The opinion of the minority prevailed because five of the ten judges who thought the law unconstitutional were members of the court of last resort. What does this remarkable divergence of opinion suggest? I do not find in the nine opinions any reason for thinking that there were any differences as to the rules of law governing the case. The power of the state to enact laws for the welfare of the people, notwithstanding the constitutional guarantee of the liberty of the individual, was not questioned. The difficulty was in determining whether the law in question was in furtherance of public welfare. The courts were approaching a question of political economy. So Judge Edward T. Bartlett of the Court of Appeals speaks of a "coming day when the legislature, in the full panoply of paternalism, etc." Justice Peckham of the United States Supreme Court says "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 Justice Holmes says "This case is decided upon an economic theory which a large part of the country does not entertain," and again “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". The fact that economic theories entertained by the judges influence their decisions as to the limits of the police power should not be excluded from the mind while studying the subject.. Neither can such decisions be regarded as landmarks permanently defining such limits. Laws, which may be meddlesome interferences with the liberty of the individual in a primitive state, may, in a highly organized society, become essential to public welfare or even to the continuance of civil liberty itself. The pace at which courts move in sympathy with fast developing economic ideas may be illustrated by Lochner v. New York, the hesitating utterance of divided courts in 1905, followed by Muller v. Oregon, the confident pronouncement of a united bench in 1908. Whatever may be said of Lochner v. New York, it is so distinguished by the later case of Muller v. Oregon that it is no authority for the relator in the case at bar.

Neither does People v. Williams, 189 N. Y. 131, sustain the relator's claim. That case decided only that it was not comp tent for the Legislature to prohibit a woman from working in a factory before six in the morning and after nine o'clock at night. The act had no relation to the number of hours of labor. To work a half hour or less in a factory before or after the forbidden hours violated the law even if that were the extent of the whole day's work. The case is decided largely on the authority of Lochner v. New York; and Muller v. Oregon forbids our drawing therefrom any general rule that labor legislation for women alone is unconstitutiɔnal. The remark therein made that women are not wards of the State is unquestionably correct. This wardship depends on presumed (in the case of infants) or proved (in

the case of lunatics) mental incompetency. No one claims that the differentiation of women from men, as subjects of legislation, depends on mental conditions. The justification for legislation special to women rests, as is said by Justice Brewer in Muller v. Oregon, on the fact of common knowledge that woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for existence. The element of invalidity in the statute under consideration, which was developed in People v. Williams, is plainly severable.

The authority upon the question seems complete. The power of the Legislature to create a class, consisting of women only, and limit their hours of labor is established in Muller v. Oregon. That the limitation may be to fifty-four hours a week is decided by State v. Somerville and Withey v. Bloem; and in these two cases, the regulation was held valid as applied to the manufacture of paper boxes, and seals for locking freight cars, occupations apparently as light and innocuous as candy-making.

But the relator claims that the exemption of the work in canning factories from the fifteenth of June to the fifteenth of October renders the law unconstitutional. A law is a rule of conduct. It must apply alike to all under like conditions. Nor can any State deny to any person within its jurisdiction the equal protection of the law. A law, therefore, cannot make an act criminal as to one person which is innocent in another under like circumstances and conditions. But as circumstances and conditions differ, classification of those subject to the law may, and often must, be made for the purpose of securing that very uniformity which is essential to law. The precise question in this case is whether the Legislature may, for the purpose of regulating the hours of labor therein, establish a class consisting of factories, as defined by the law of New York, except canning factories. This depends on whether there is a difference in conditions which warrants the classification. Resorting to authority, we find that this very question has been decided in State v. Somerville (Washington), 122 Pac. Rep. 324, and in Withey v. Bloem, 163 Michigan 419, and in Mt. Vernon, etc. Co. v. Frankfort, etc. Co. (Maryland), 75 Atl. Rep. 105. These are all cases in which canning factories have been exempted from the operation of laws fixing the hours of labor for women and children in manufacturing establishments.

The relator has presented to me a record of evidence taken this year before a committee of the Senate of the State of New York. It is claimed that this record shows that conditions in canning establishments are more injurious to the health of women and children than in many other factories, for instance, than in candy factories. But this is a subject upon which the court cannot take evidence. Classification for the purpose of confining the operation of laws is a legislative function. Every statute presupposes a finding by the Legislature of the facts necessary to bring the act within its powers. In ascertaining these facts, the Legislature is not limited to the narrow field of legal evidence. It may draw its information from any source open to mankind. If the courts may review this finding of the Legislature, with the aid of such limited means of knowledge as legal evidence affords, an act might be held constitutional in one case and otherwise in another, dependent upon the industry with which the evidence was collected and the skill with which it was presented. In State v. Somerville, supra. evidence was offered that the work was light and harmless and the court held it irrelevant, saying, "Courts, in passing upon the reasonableness or unreasonableness of a statute, and deciding whether the Legislature has exceeded its powers to such an extent as to render the act invalid, must look at the terms of the act itself, and bring to their assistance such scientific, economic, physical, and other pertinent facts as are common knowledge, and of which they can take judicial notice." And again," in all cases pertaining to the police power the Legislature is supreme,

unless the general application of the law does violence to the common knowledge of men, in which event a court might properly intervene." What matter of common knowledge instructs me that conditions in canning factories require the limitation of the hours of women therein in the same measure as in other factories? They may or may not. I do not know. Neither can I take evidence on the subject. I may read the act and bring to my assistance matters of common knowledge, such as a court may take cognizance of without evidence, and unless it thereby appears that there is no reasonable basis for the exception, I must trust to the wisdom of the Legislature and uphold the act. The information received by the court in Muller v. Oregon (see 208 U. S., p. 419), such as the statutes of other States and foreign nations, reports of committees, bureaus and commissions, proceedings of medical societies, and matters of that kind, are legitimate means of ascertaining what are matters of common knowledge. Such things I may receive, but not evidence of conditions in certain canning factories such as is offered in this case. If the inquiry now in progress shows that the exception of canning factories is not justified, we may presume that the law will be corrected by the Legislature. But irrespective of conditions in these factories, it is for the Legislature to determine whether the interest of the public in preserving perishable fruits is more important than the health of female and minor employees. However loath the courts might be to acquiesce in the wisdom or humanity of such a decision, yet it is a matter of legislative and not judicial cognizance.

I have not thought it necessary to decide the interesting question presented by the district-attorney whether an exception introduced into an existing law could have the effect of invalidating the law.

The relator appeals to the court in the name of liberty. He claims that liberty is protected by the Constitution, which was enacted by the people themselves, and that none but the people, not even their agent the Legislature, has dispensing power over it. He claims that the Constitution itself, in article xiii, section 1, requires that every judge before entering upon the duties of his office shall take an oath to support the Constitution of the United States and the Constitution of the State of New York, and that this means to support them even against the acts of the Legislature. In all this he is right. Such is the law and such is the duty of all courts. What is the constitutional liberty which every judge is to protect? It is civil or political liberty. Man in a state of nature, as the eighteenth century philosophers were wont to say, has an inherent right, as a free moral agent, to act, think and speak as he pleases. When he becomes a member of society, he necessarily surrenders a portion of that liberty in the interest of the rights of others and the welfare of society. The modicum of liberty, remaining after such surrender, is civil or political liberty. An act of the Legislature in the interest of the health, morals or safety of the community operates within the field of the surrendered rights and does not abridge civil liberty. If then the statute, forbidding the relator to employ in his candy factory minors under a certain age, and women, more than fifty-four hours a week, is a measure in the interest of the welfare of society, it does not impair his civil liberty, although it does limit his right to contract for labor. I find this decided already by authority and fully and sympathetically concurring in the reason by which the result was reached, I gladly follow the precedents.

The development of the industrial life of the nation, the pressure of women and children entering the industrial field in competition with men physically better qualified for the struggle, has compelled them to submit to conditions and terms of service which it cannot be presumed they would freely choose. Their liberty to contract to sell their labor may be but another name for involuntary service created by existing

Industrial conditions. A law, which restrains the liberty to contract, may tend to emancipate them by enabling them to act as they choose and not as competitive conditions compel. All these considerations are for the Legislature, and for the Legislature alone. It is only where the statute controls conduct in matters plainly and obviously indifferent to the welfare of the public, or any portion thereof, that the courts can pronounce the act violative of civil liberty. Certainly this is not such a case. People ex rel. Hoelderlin v. Kane, 79 Mis.

Eight-Hour Law on Public Work.

Effect of Violation on Contractor's Bond. The village of Medina had awarded to a contracting concern a contract for the construction of sewers in said village. The contractors had furnished a bond executed by the Title Guaranty and Surety Company as surety for the full and faithful performance of such contract. With the knowledge of the sewer commissioners of said village, the working day on the construction of the sewer was ten hours. After the contractors had been paid approximately eighty per cent of the contract price, but before the sewer was completed, the contractors abandoned the work. The village then brought suit against the surety company for the recovery of damages. The Supreme Court dismissed the complaint upon the recommendation of a referee appointed to hear, try and determine the issues. On appeal the lower court was sustained, the Appellate Division's decision being in part as follows:

The presiding justice in his opinion, handed down herewith, takes the position that the contract between the village and the contractors, though it did not in fact contain the stipulations required by the statute, must yet be read, construed and treated as though they had in fact been written in it. Assuming this view is correct, the contract would then have provided expressly that it "shall be void and of no effect unless" the contractors should comply with the provisions of the section. They did not so comply, as has been pointed out above. Even conceding that plaintiff could waive as to it its right to insist for that reason that the contract was void, and could consent that the contractors might continue their illegal manner of its performance, yet this concerted action by plaintiff and the contractors, of which the surety company had no knowledge, or notice, and to which it was in no way a party, could not alter, or impair, its rights, or enlarge, or change, its obligations as surety. The contract, performance of which it had guaranteed, was one to be performed in accordance with the statutory requirements. When these provisions were with plaintiff's tacit consent continuously disregarded and violated by the contractors, then, as to the surety company, the contract became and was void, and no liability for non-performance of the contract remained; for, as to it, there was no longer any contract to which its guaranty of performance could apply. Village of Medina v. Dingledine, 152 App. Div. 307.

Prevailing Rate of Wages Law.

Enforcement.

Section 21 of the Labor Law provides for enforcement of the prevailing rate of wages law as follows:

If complaint is made to the Commissioner of Labor that any person contracting with the State or a municipal corporation for the performance of any public work fails to comply with or evades the provisions of this article respecting the payment of the prevailing rate of wages, the requirements of hours of labor or the employment of citizens of the United States or of the State of New York, the Commissioner of Labor shall, if he finds such complaints to be well founded, present evidence of such non-compliance to the officer, department or board having charge of such work. Such officer, department or board shall thereupon take the proper proceedings to revoke the contract of the person failing to comply with or evading such provisions.

Complaint was lodged with the Commissioner of Labor that the Keystone Construction Company, while engaged in fulfilling a contract entered into with the City of New York, was paying its employees less than the prevailing rate of wages in that locality. Upon investigation the Commissioner found the complaint well founded. The construction company asked for a hearing before the Commissioner which was granted. The result of the hearing was that while the prevailing rate of wages for the same kind of work as that being directed by the company was found to be less than previously determined by the Commissioner, it was still above that being paid by the company. Before the Commissioner could present his evidence of non-compliance with the law to the Board of Water Supply of the City of New York, which board had immediate charge of the work in question, the construction company obtained a writ of certiorari requiring the Commissioner to make a return and providing for a review of his proceedings, together with an injunction staying him from proceeding further in the matter. The Commissioner made a motion for an order quashing the writ and vacating the injunction order. The Supreme Court denied the motion. On appeal, the Appellate Division, citing the case of People ex rel. Dumary v. Van Alstyne (53 App. Div. 1), said:

Following out the reasoning in that decision, if, after receiving notification by the Commissioner of Labor that in his opinion the contractor, the relator here, was not complying with the provisions of the Labor Law, the board of water supply should cancel the contract, the action of the Commissioner of Labor would be no protection whatever to the city of New York or its board of water supply upon an action being brought by the contractor for damages for cancellation of his contract. It cannot well be otherwise. It cannot be that the determination of the Commissioner of Labor is conclusive in a matter of this kind, as he is not under the statute compelled to give the contractor any notice of his investigation; but if he finds such complaint to be well founded, that is, having the appearance of truth and verity, then he is to