The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-12-08


an infringement upon liberty half a
century ago may be the necessary safe
guard of liberty today. What would
have been an injury to property then
may be necessary to the enjoyment of
property now. Every judicial decision
involves two terms-One an interpreta-
ton of the law, the other the under
standing of the facts to which it is to
be applied. The great mass of our jul
dicial officers are, l believe, alive to
these changes of conditions which so
materially affect the performance of
their judicial duties. Our judicial sys-
tenn is sound and effective at core, and
it remains and must ever be main
tanned as the safeguard of those prin-
ciples of liberty and justice which
stand at the foundation of American
institutions, for, as Burke finely said,
when liberty and justice are separated
neither is safe. There are, however,
some members of the judicial body
who have Jagged behind in their IN
Outstanding of these great and vital
changes in the body polite, whose
minds have never been opened to the
new applications of the old principles
made necessary by the new conditions.
by their decisions, because they con-
vince poor men in need of protection
that the courts of the land are pro-
foundly ignorant of and out of sym
pathy with their needs and profoundly
Indifferent or hostile to any proposed
remedy. To such men it seems a cruel
mOckery to have any court decide
against them on the ground that it de-
cir. To ~,
technical form 'thholding liberty
in any real and c. lsLrU Give sense. 1t
is desirable that the legislative body
should possess and, wherever neces-
sary, exercise the power to determine
whether in a given case employers
and employees are not on an equal
footing, so that the necessities of the
latter compel them to submit to such
exactions as to hours and conditions
of labor as unduly to tax their
strength, and only mischief can result
when such determination is upset on
the ground that there must be no lin
reference with the liberty to con-
tract'-often a merely academic lib
erty." the exercise of which is the ne
CATION of real liberty.
There are certain decisions by va
ingly detrimental to the rights of
wagewOrkers. This is true of all the
decisions that decide that men and
women are by the constitution guar
anteed their liberty" to contract to
enter dangerous occupation, or to
work an undesirable or improper num-
Der of hours, or to work in unhealthy
surroundings, and therefore cannot re-
n in tInt
occupation and cannot be forbidden
to work what the legislature decides is
an excessive number of hours, or to
carry on the work under conditions
which the legislature decides to be I'M
healthy. The most dangerous occupa-
tions are often the poorest paid and
those where the hours of work are
longest and in many cases those who
go into them are driven by necessity
so great that they have practically no
alternative. Decisions such as those
alluded to above nuIlify the legislative
effort to protect the wagewOrkerS who
most need protection from those en-
plOyers who take advantage of their
grinding need. They halt or hamper
the movement for securing better and
more equitable conditions of labor.
cry hunted beings who make contracts
for such service their liberty to
make them is either to speak in a
spirit of heartless irony or else to
show an utter lack of knowledge of
the conditions of life among the great
masses of our fellow countrymen, a
lack which units u judge to do good
service just as it would unit any eX-
There is also, 1 think, ground for the
belief that substantial injustice is
often suffered by employees in conse-
quence of the custom of courts fssu-
ing temporary injunctions without no.
tice to them and Furnishing them for
contempt of court in instances where,
as a matter of fact, they have no
knowledge of any proceedings. Out
side of organized labor there is a wide
spread feeling that this system often
works great injustice to wageworkers
when their efforts to better their work
ing condition result in industrial dis
putes A temporary injunction pro-
cured ex parte may. as matter of
fact. have all the effect of a perma-
nent injunction in causing disaster to
the wageworkers' side in such a dis
pute. Organized labor is chatting I'M
der the unjust restraint which comes
from repeated resort to this plan of
procedure. Its discomfort has been I'M
wisely expressed and often improper
~ expressed, but there is a sound
basis for it. and the orderly and law
abiding people of a community would
be in far stronger position for up
holding the courts if the undoubtedly
existing abuses could be provided