Magna Carta, and Other Addresses

by William D. Guthrie

In the Jacobs case, Presiding Justice Noah Davis, speaking for the intermediate appellate court sitting in the city of New York, and undoubtedly acquainted with conditions then and there existing, used the following language: "A careful study of the act has satisfied us that its aim was not 'to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases,' as declared in the title, but to suppress and restrain such manufacture in the cases covered by the act for the purpose of preventing successful competition injurious to other modes of manufacturing the same articles.... If the act were general and aimed at all tenement houses, and prohibited for sanitary reasons the manufacture of cigars and tobacco in all such buildings, or if it prohibited such manufacture in the living-rooms of all tenants, another case would be presented. But in the form in which it comes before us it is so unjust in its inequality, so harsh and oppressive upon the labor of poverty, so keenly discriminative in favor of the stronger classes engaged in the same occupation, that it certainly ought not to have been enacted; but, being enacted, ought to be held invalid because it deprives the appellant of his right and liberty to use his occupation in his own house for the support of himself and family, and takes away the value of his labor, which is his property protected by the Constitution equally as though it were in lands or money, without due process of law."[13]

Discussing the Jacobs case, Mr. P. Tecumseh Sherman of the New York bar, who is reputed to be one of the best informed men in our state upon the subject of labor conditions and labor legislation and who was at one time a state commissioner of labor, said in a letter published a few weeks ago that the tenement-house statute, although purporting to be for the public health, was not a reasonable regulation for that purpose, because it arbitrarily selected one article and forbade its manufacture under certain conditions not generally unsanitary, and he added that "as matter of fact, the act was not designed to protect health but to put out of business one set of competitors in a trade war."

Now let me call your attention to two examples of the manner in which this decision is being criticized. In an address delivered at Yale University last month, the mayor of the city of New York, who for many years had been a justice of the state supreme court, criticized the courts and derided the administration of justice in his own state. He referred to the Jacobs case in the following language: "The first case I shall call your attention to is known in my own state as the Tenement House Tobacco case.... You know what a condensed population we have in a part of the city of New York. Well, benevolent men and women in going around there found in little rooms in these crowded tenements certain things being manufactured that were not wholesome. They found tobacco being manufactured into its various products in the living-rooms of these poor tenements. Benevolent people who helped the poor saw it and they saw the evils of it. They saw little children born into this world and brought up in bedrooms and kitchens in the fumes and odors of tobacco. They also saw longer hours of work than would be the case if workers left their work at the shop and went home. So they went to the legislature and got a law passed forbidding the manufacture of tobacco in the living-rooms of these tenements." Mayor Gaynor then proceeded to criticize and condemn the Court of Appeals for its reasoning and decision.

The facts, however, were that the statute was not limited to "the living-rooms of these tenements," but applied to every room, and that the promoters of this legislation were not the benevolent men and women who visit and help the poor, as Mayor Gaynor imagined, but the owners of tobacco factories who desired to crush the competition of independent workers. Nor was there anything in the case before the courts to support the statement that any one had seen "little children born into this world and brought up in bedrooms and kitchens in the fumes and odors of tobacco." No such conditions were before the courts, and the contrary was proved by unimpeached evidence in the Jacobs case, as any one reading the record could see. But, even if the picture had been true, the decision in this case did not in any way whatever prevent proper legislation prohibiting the manufacture of tobacco products in the bedrooms and kitchens of crowded tenement houses or under unsanitary conditions.

Ex-President Roosevelt is equally inaccurate in his criticism of the Jacobs case. He is reported as having said in one of his recent speeches that "the decision of the court in this case retarded by at least twenty years the work of tenement-house reform and was directly responsible for causing hundreds of thousands of American citizens now alive to be brought up under conditions of reeking filth and squalor, which measurably decreased their chance of turning out to be good citizens." The truth is that the decision did not retard tenement-house reform by a single day, and did not prevent the enactment of a single provision for securing sanitary conditions for those who work at home. In fact, the necessary legislation has since been readily secured and enacted in New York without any amendment of the state constitution. Our public health and labor laws now regulate the manufacture of tobacco and other articles in homes and require and secure sanitary conditions, and licenses authorizing manufacturing at home are issued subject to cancellation at any time if the surroundings become unsanitary.

Mr. Sherman characterized as absurd the statement made by Mr. Roosevelt in regard to the effect of this decision, and added that "so far, then, from having done harm in the way of sanitary reform, the decision in the Jacobs case has done good by giving the reform a proper direction and object. Mr. Roosevelt's criticism receives a ready chorus of approval from a large body of ill-informed reformers who seek to prevent some of the evils of 'sweating' by arbitrarily forbidding all home manufacture in tenements. But the vast majority of tenement houses in New York are of a class better described as apartment houses, which are perfectly sanitary, and in such houses there is much home work of a good kind, such as fine sewing, art work, &c., and under good conditions; and it would be a deplorable and unnecessary interference with liberty to forbid such work as an incident to the prevention of home work in unsanitary slums."

Another New York case which is being similarly criticized and misrepresented is what is known as the Bakers case, or People vs. Lochner.[14] The decision in this case declaring a statute unconstitutional was that of the Supreme Court of the United States and not of the New York Court of Appeals; in fact the latter court sustained the act, although by a divided court. Mayor Gaynor explained this decision to his audience at Yale, composed largely of law students, in the following language: "The next case in order was the bake-oven case in my state. A bake-oven, you know, is underground. And if any of you ever were in a bake-oven I do not need to say another word about bake-ovens. It is the hottest and most uncomfortable place on the face of the earth. It is a hard place to work in. It is hot and unhealthy, and no one can stand it without injury to health. So in the same way in the state of New York we had an act passed prescribing sanitary regulations for the bakeries.... These bake-ovens are exceptional. They are underground and as hot as Tophet, if I may use such an expression here.... The law was passed prescribing regulations for them. One of the regulations was that ten hours a night was all that a baker should work in these places." And Mr. Roosevelt is reported in the newspapers as criticizing this decision and stating to his audiences that "this New York law prevented the employment of men in filthy cellar bakeries for longer than ten hours a day."

The statute in question applied to manufacturers of bread, biscuits and confectionery. Taken in connection with the then existing Public Health Law, it contained adequate provisions for securing the best conditions of sanitation and ventilation and for safeguarding bakers from the effects of heat and of breathing flour or other particles. There was no distinction drawn in the act as to hours of labor between sanitary and unsanitary conditions of work, or between bakers and other employees, or between night and day work. The power of the legislature to prevent the manufacture of bread or other articles of food in cellars or in underground bake-ovens or in filthy and unsanitary places, whether above or below ground, was not challenged. The provisions of the act tending to secure sanitary conditions were not interfered with or set aside by the courts, and they have ever since been enforced as valid for all purposes. The act was not confined in its operation to workmen compelled to labor at night underground, but applied to everyone employed day or night in factories, above or below ground, in which bread, confectionery, or biscuits were manufactured. It is true that medical authorities were cited to the courts in support of the view that the trade of a baker was injurious to health, but such authorities were based upon statistics gathered under conditions of labor which could not have existed then and cannot exist now in New York if the elaborate regulations of our public health and labor laws be duly enforced. There were, however, conflicting medical authorities cited to the court, which asserted that the trade was not unwholesome.

Lochner owned a bakery at Utica in which he worked himself and employed three or four workmen. There was only one oven, and it was above ground. The building was clean, especially well ventilated and sanitary. The only question before the court in the case was whether Lochner could be made a criminal and imprisoned for permitting his workmen to labor more than ten hours in any day under the best sanitary conditions, and the Supreme Court held that this could not be done without violating his constitutional rights. Had the conditions of work in bread, biscuit, or confectionery factories in the state of New York been shown to have been unusually dangerous and necessarily unwholesome, the law would undoubtedly have been sustained by the Supreme Court, as was the Utah miners' act in Holden vs. Hardy.[15] No one who has studied the decisions of the New York courts or of the Supreme Court of the United States can doubt that any statutory provision reasonably tending to protect the health of bakers and other workmen and to prevent labor in unhealthful places would be upheld as clearly within the police power of the legislature.

The act, moreover, was one-sided and discriminatory in that it made the employer a criminal but left the workman free to do as he saw fit. A baker working for A for ten hours in one day was left at liberty to go next door to B, A's competitor, and, if he saw fit, work another ten hours for B. In fact, as I am told, the informer on whose testimony Lochner was convicted frequently worked ten hours a day for Lochner and a number of hours additional in another bakery. If the act had been honestly conceived in a desire to safeguard the health of bakers, it would, of course, have provided some punishment for any violation of the law on the part of the workmen, and not have left them at liberty to disregard its spirit whenever they saw fit to do so.