After remarking that the statute is highly penal and should be strictly construed, the court points out that the power given Congress is to regulate commerce with foreign nations and among "the several States" and with the Indian tribes, and says that it is at least possible that because of some doubt as to its power to so legislate, Congress intentionally omitted to include shipment of lottery tickets from States to a territory or to the District of Columbia. It is true that in the Interstate Commerce Act, Congress has undertaken to regulate commerce between any State or territory and the District of Columbia. But that act was passed by the forty-ninth Congress, while the fifty-third Congress, which was responsible for the statute in question was composed, to a considerable extent, of different individuals.

Moreover, the court says that while it may be within the power of Congress to forbid interstate shipments of lottery tickets through any State, even when their ultimate destination is a Territory or the District of Columbia, it cannot think that it was the intention of this statute. If a shipment were made from New Jersey through New York to Canada, it seems clear that the statute in question would not support an indictment therefor. In conclusion the court says, that if it gives Congress, which always numbers many able men of the legal profession among its members credit for knowing that the word "State" has often been held not to include a territory or the District of Columbia, it cannot say with certainty that it intends the word "State" to mean Territory or the District of Columbia.

In

indefinite time by the A. S. Company was injured while at work and brought suit against his employer therefor. The employer was insured against loss for injuries to its employés by a policy issued by defendant which entitled the latter to cancel the policy on five days' notice and to defend actions for injuries brought against the employer, but which gave the defendant no right to demand the discharge of an injured servant. Defendant at various times sought to settle plaintiff's claim and in order to induce a settlement threatened to have him discharged. A representative of defendant went to the A. S. Company's factory and after an unsuccessful attempt to settle the claim stated to the company that if it did not discharge plaintiff the policy would be canceled. The company would have employed plaintiff steadily had it not been for this threatened cancellation of the policy. It did discharge him, however, and plaintiff sued the insurance company for its part in the matter. defending the suit the insurance company relied largely on the case of Allen v. Flood, 67 L. J. Q. B. 119, decided in the House of Lords in 1897. In that case certain shipwrights secured the discharge of certain boiler makers and a recovery was denied the latter principally on the ground that every workman has a right to exercise his own option with regard to the persons in whose society he will work, and that when the employer is confronted with the possibility of the loss of services of one set or the other, he has a right to elect which he will lose. That and other cases of a like kind are distinguished from the present case by the court on the ground that they presented instances of lawful competition, the view being taken that it is a violation of legal right to interfere with the contractual relations of others if there is no sufficient justification therefor, but that competition in trade, employment, etc., is such a justification. It is then held that the insurance company and plaintiff were not in competition, despite the fact that the company wanted to settle the claim for the least possible amount, while the plaintiff wanted to secure the largest possible amount. The word "competition" is held to

mean trade competition. The dissenting opinion of Mr. Justice Holmes in Vegelahn v. Guntner, 167 Mass. 92, 44 Northeastern Reporter 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443, giving a larger meaning to the term is not approved. From the holding that plaintiff has a cause of action Justices Wilkin and Cartwright dissent, principally on the ground that the company had a right to cancel the policy for any reason it pleased and that the threat to do a lawful act cannot be unlawful.

POLICE POWER.

(BAKERS-EMPLOYES-REGULA

TION OF HOURS OF WORK-CONSTITUTIONALITY
OF STATUTE-LIBERTY OF CONTRACT.)

NEW YORK COURT OF APPEALS

In People v. Lochner, 69 Northeastern Reporter 373, the New York Court of Appeals had before it the question of the constitutionality of laws 1897, c. 415, art. 8, sec. 110, p. 485, providing that no employé shall be required or permitted to work in a biscuit, bread or cake bakery or confectionery establishment more than 60 hours in any one week, or more than 10 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 10 hours per day for the number of days during such week in which such employé shall work. The section is followed by a number of provisions relative to the cleanliness and general sanitary condition of bakeries. Chief Justice Parker delivered the main opinion. The statute was defended as a health regulation, and therefore a valid exercise of the police power. After citing many cases as to the extent of the police power, notably that of Holden v. Hardy, 169 U. S. 366, 18 Supreme Court Reporter, 383, 42 L. Ed. 780, in which a Utah statute providing an eight hour day for miners was upheld, and People v. Havnor, 149 N. Y. 195, 43 Northeastern Reporter, 541, 31 L. R. A. 689, 52 Am. St. Rep. 707, in which a statute forbidding barbers to work on Sundays was also sustained, the chief justice declares that the statute in question was enacted with the intention to promote the public health.

"It is but reasonable to assume from this statute as a whole that the Legislature had in mind that the health and cleanliness of the workers, as well as the cleanliness of the workrooms, was of the utmost importance, and that a man is more likely to be careful and cleanly when well and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease. If there is opportunityand who can doubt it?-for this view, then the Legislature had the power to enact as it did, and the courts are bound to sustain its action as justified by the police power."

Justice Gray, in a concurring opinion, says that it is true that a tendency has been growing in the direction of excess of paternalism in government, and the courts have rather hastened to uphold legislative interference with the pursuits of citizens upon any plausible pretext. But the Legislature has, and should have, the broadest authority to exercise a police power of internal regulation in the direction of protecting the peace, the safety and the health of the community, and in this law he thinks may fairly be perceived a statutory regulation reasonably promotive of the public health.

Justice Vann, concurring at considerable length, cites various medical authorities which declare that the occupation of a baker is peculiarly conducive to pulmonary dis

eases.

Justice O'Brien in dissenting, indulges in a somewhat desultory criticism of the statute, saying that it is class legislation, that it is impossible to perceive what connection the number of hours that the workmen are employed can have with the healthful quality of the bread they make, and that while the Legislature may no doubt define what shall constitute a day's work, it cannot prohibit parties from making agreements on the subject for themselves.

Justice Bartlett also dissents.

The fact that the statute is found codified under the title "Labor Law," is productive of some difficulty in regarding it as a health regulation, but one which the majority does not find insurmountable.

VOL. XVI. No. 5.

MAY, 1904.

FRAN

singular and unusual degree the delicate fancy of the poet, and the strong reasoning faculty of the lawyer. His fame as the author of the first of our national songs, "The Star-Spangled Banner," has dimmed his earlier reputation as a lawyer. He was thirty-five years old when he wrote his immortal song, but he had already acquired a prominent place among those who flourished in what has been most appropriately called "the golden days of the Maryland bar," when such men as William Pinkney, Luther Martin, William Wirt, Robert Goodloe Harper, Reverdy Johnson and John Nelson formed an unrivalled galaxy of legal giants.

ence.

Key was born in the midst of the American Revolution, on August 1, 1779, and his father, Colonel John Ross Key, served with distinction in the Continental Army and contributed liberally in money to the support of the glorious cause of American independAfter graduating at St. John's College, Annapolis, Maryland, high in the class known as the "Tenth Legion," on account of the remarkable brilliancy of its members, young Key studied law in the office of his uncle, Philip Barton Key. He was admitted to the bar in 1801, and began to practise in Frederick, Maryland, in the county of which he was a native. Seeking a wider field for professional honors, he removed to Georgetown, D. C., and entered upon a successful career in Washington, Baltimore, Annapolis and other cities.

He frequently appeared before the bar of the Supreme Court of the United States. where he distinguished himself by his chaste, elegant and finished eloquence. One of his ablest arguments before this high tribunal was made in March, 1825, upon a question involving the seisure, by a revenue cutter, and the confiscation of a vessel engaged in the African slave trade. Not only was there a large amount of money involved in the suit, but certain moral considerations of great delicacy. Mr. Key opened the case for the United States, having been engaged to assist the Attorney General, the celebrated William Wirt. On the other side were Charles J. Ingersoll, of Philadelphia, and John M. Berrien, of Georgia. The case attracted great attention, and the Supreme Court was crowded by lawyers, politicians, members of Congress, fashionable women and idle men. Mr. Key, who was deeply interested in the case from a moral as well as a professional point of view, made his opening argument with a force, an energy, a beauty of language, a power of logic, and a richness of fancy which astonished even his most admiring friends. He closed his speech with a picture of the horrors of the "middle passage," (after describing the unhappy lot of the poor wretches, who were seized and carried off from their homes, their families and friends) in a style of burning eloquence that might have done honor to a Pitt or a Wilberforce.

Mr. Key was an enthusiastic promoter of the African Colonization Society whose ob