The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-03-20
THE CAREER OF
JUDGE PARKER.
Continued from First Page.)

an unusually interesting one because
it introduces new feature into the
law of contracts. by which persons
OF sound and open minds and honest
purposes are cut off in one direction
from freedom of contract, IN that
they may not agree that an interme-
diary shall for all purposes of the con-
tract be deemed the agent of one of
the parties if some court be of the
opinion that he was the agent of the
other
1t is in regard to some of the more
recent causes affecting what has come to
lie known as Labor legislation" and kin
dred subjects, that interest has lately
conferred around Judge Parkers opinions.
In these cases he has either led the dis
sent or succeeded III carrying the Court by
hls own casting vote.
In 1897 the New York Legislature pass
ed what is known as the Prevailing Rate
OF Wages Law, under which it is provided
that workmen and mechanics on all pub
lie works should receive not less than
the prevailing rate of wages, and that
every contract thereafter made for pub
lie work should contain a clause binding
the contractor to pay the prevailing rate
OF wages; with very drastic provisions
for violation. The city of New York ac-
cordingly made contract containing this
clause, and afterwards the question OF
the constitutionality of the statute was
raised in niandamus proceedings brought
by the contractor for payment by the
city for work done. where it was admit
ted that the prevailing rate of wages had
not been paid. When the case reached
the Court CT Appeals, the Court was so
thoroughly convinced of the utter badness
and unconstitutionallty of the act. that
it promptly awarded the relief sought,
in spite of the fact that whether the
law were constitutional or not. the con-
tractor had made contract binding
himself to pay the prevailing rate OF
wages. There is considerable common
sense in the reply of the Court to this
latter objection If the law is valid the
Court says. it governs the contract and
the rights of the parties, whether actu-
ally incorporated into the writing or not
If it is not valid. the contractor has not
made it SO by STIMULATING in writing to
obey it, ut Is not in the power of the
Legislature to protect an invalid law
from judicial scrutiny by providing that
il must receive the assent of the parties
TO every contract to which it relates
Judge Parker writes a vigorous dissent
ing opinion, in which he points out among
other things, that whether the statute
is unconstitutional or not. there is moth
ing to prevent the contractor from incor-
porating the phraseology OF the statute
into the contract. Whatever we may
think of the policy of the legislation, we
question very much whether the majority
of the Court did not step beyond its du-
ties as to the principle of the law and
come perilousiy near to Judicial legis-
lation. Judge Parker carried with him
only one of the Court. The law was de-
clared unconstitutional by vote of five
to two.
A similar question came before the
Court at the same term involving the So
called Dressed Stone Law, law that
required dressed stone for public buildings
in New York city to be dressed or carved
in the State of New York. In this case
Judge Haight. who had joined Judge Par
ker in the Prevailing Rate of Wages de-
cision. now goes with the majority on
the authority of the first case: but the
Chief Judge resolutely reaffrmed his for
mer objections to the law, especially on
the ground that the provision was IN the
contract anyway. whether the law was
good or not.
In line with these cases was the decision
of the Court Of Appeals rendered shortly
after, in which the Court declared un-
constitutional the law prohibiting any
person contracting with the State or
with municipal corporation from requir-
ing more than eight hours work for a
days labor. The result of the case in
the Court of Appeals was to sustain a
demurrer to an Indictment. Judge Parker
concurs in the result on question of
pleading; he writes no opinion, but takes
pains to go on the record dissenting
from even the expression of a doubt as
to the power of State to enforce its
constitutional mandate by making the
violation thereof a crime, whether such
violation arises under contract with the
State or otherwise" In this case the
Court holds that the law conflicts with
the Fourteenth Amendment of the Fed
eral Constitution. because it creates an
arbitrary distinction between persons
contracting with the State or municipali-
ty and other employers of labor, and thus
denies to a person within the States ju-
risdiction the protection of its laws. 1t
is of interest to note that at the current
session of the United States Supreme
Court similar provision Of the Kansas
Statute has been held not to conflict
with the Fourteenth Amendment.
We have already pointed out that
Judge Parkers temperament is far in
deed removed from lethargic, and it is
not surprising to find that dissenting
opinions. or opinions making a bare ma
jOrity. seem to afford the Chief Judge
the most eagerly welcomed subject for
discussion. And the dissenting opinion is
apt to stray long way beyond the argu-
ment heard in the court room When
in q recent case the Court held that the
use of street for street surface rail
way operated by electricity imposes an
added burden upon the property owners
of the fee. the Chief Judge took it upon
himself to write a dissenting opinion,
carrying with him one of the judges.
in which he cites no less than forty-seven
eases opposed to the general proposition
laid down by the Court. these cases be-
ing drawn from all over the United
States. and only about half a dozen of
them having been suggested to the Court
the rest apparently representing volun-
tary research.
The New York Court of Appeals has