The labor journal. [volume] (Everett, Wash.) 1909-1976, 1911-06-02
COURT DECISIONS.
Defeat Elementary Justice and
Common Sense.
INVITE THE POPULAR WRATH

Compensation Act Engends- Only
Disrespeet and Disoyalty III Courts
and Constitutions.
The New York court of appeals has
decided in its wisdom that the legisla
tlre cannot enact law which insureS
compensation to employees injured in
lhe course of their work and to the
families of those who are killed. The
utmost that can be done is TO sweep
away some of the judge made de-
lenses behind which employers have
shielded themselves in damage suits.
These defenses have indeed been
strong to defeat elementary justice
and common sense. The fellow serv-
ant doctrine, the doctrine of contrib
utory negligence and the doctrine of
assumption of risk, we are told, lie
within the power of the legislature.
We now learn that when the
lawmakers open their eyes. when their
minds are stirred out of the old ideas
and they determine to enact a law
which is in principle measurably
abreast of those of the most backward
countries Of Europe, they are not to
be allowed to do anything Of the kind.
Employees may without legislative en-
actment be declared to have assumed,
but employers cannot even by statute
be required to assume, the risks of
their trade.
The doctrine that employees tacitly
assume the risks of their trade is
good law. for the judges since Abin-
ger in the Priestly case and Shaw in
the Farwell case have said it.
Lord Abinger, in refusing to hold the
employer liable, roundly declared that
1.-The Inconvenience and absurdity of
the consequences is sufficient ar
gument against this principle" After
all these years legislature finds, what
has long been obvious to moralists.
economists and sociologists, that it is
the opposite principle Of requiring an
employee 10 prove that neither he nor
his fellow servants are negligent,
which involves iucOnvenient and alb
surd consequences The legislature
modesty tries. in n few admittedly
dangerous trades. to establish the prin-
ciple Of assumption Of risk by the en-
pioyer it proposes a plan by which
the industry as a whole is to assume
the risk, which is gradually to be trans
ferred hike other increases Of expense
ia manufacture, 70 the consuming pub
lie. But. behold what the Judges did
without difficulty at the expense Of the
defenseless workers, even the sover-
eign legislature cannot do at the ex-
pense If the industry. Why Because
st. appears this IS taking property with
out due process of law. The legislature
had done Its best, but 10 create due
process Of law for the establishment of
a rational, just and modern system Of
compensation for Industrial accidents.
even in the dangerous trades. Is be
yond its power. This is not because the
makers Of the constitution intended to
put il beyond the power of the legis-
lature or because they have ever done
anything which by the widest stretch
Of the Imagination could possibly be in
terpreted as indicative of any such in
tention. The fourteenth amendment
was intended to protect ex-slavcs from
any state laws which might impose
civil disabilities upon them. An earlier
amendment, the fifth requires the fed
eral government also TO observe due
process Of law in taking life liberty
fv+ ar. IL.
law" is one Of the most ancient ana es-
teemed Of all the common law tradi-
tons. But II this ancient bulwark Of
liberty, so long the peculiar glory Of
England and Of English speaking peo-
pie, is by judicial Interpretation 10 be-
come one more obstacle In the way of
rational legislation, one more hooking
denial OF popular rights under the cover
OF protecting them. a husk Of constitu-
tional guarantee with a rotten kernel
OF legislative impotence, then the soon.
er 1t is swept out Of the constitution
and out OF the judicial mind the better
for all concerned.
Courts and constitutions cannot re-
tain public respect and loyalty. TO say
nothing of generation and affection II
decisions Of this kind represent their
prevailing spirit. No lip service to the
economics, sociology, and morality.
which the judges evidently discover
with much misgiving. as a new force
which they do not fully understand.
but with which they see that they
must reckon. will save them from the
popular wrath which such decisions
engender.
II we must amend the state and
federal constitutions before we can