The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1912-04-04
eAYNoR HITS THE COURTS
Says Their Decisions Have Stood In
the Way Of Progress


Mayor Gaynor of New York, in an
article published yesterday in the law
magazine Bench and Bar: DO the
courts of this country stand in the
way of social and economic prog
ress?" is the question asked by the
mayor, who for many years before
his election was justice of the state
supreme court His answer Isl
Yes, they do, and have done so for
a long time. But this is nothing new.
In all ages, and pretty much every
where, the courts have tried to apply |
their legal rules of thumb to social, I
commercial and economic matters, al /
ways with signal failure and generally
with injury to industry commerce and /
the social good
Nothing is more distressing than
to see bench OF judges, old men, as
rule, set themselves against the
manifest and enlightened will Of the
community in matters of social, econ
omic or commercial progress. The
same is true in matters of morals and
religious growth also. Jesus, Socra-
ties and many who came after them.
age after age, fell victims to judicial
narrow mindedness But the adverse
decisions of courts have not been able
to stop human progress. Sometimes
they battle it for the time being. Some
times, by creating evaporation in
the intelligent mind, they accelerate
it, Not to quote other instances, the
decision Of the United States supreme
court remanding the negro boy bred
Scott back into human slavery only
FASTENED the coming liberation Of the
slave
Mayor Gaynor then cites several re
cent judicial decisions which, he
says, were planted right in the path
of economic and social progress.
Among these are the decisions de
claring unconstitutional the laws for
bidding the manufacture of tobacco
in tenement houses, and regulating
underground bakeries, the hours of
labor for women in factories and over.
throwing the New York state employ
ers liability law.
OF the tobacco decision the mayor
writes:
This tobacco case, in which the
court showed so much sensitiveness
for the rights of property and liberty,
and so little for physical mental and
moral health, was the final and full
outcome of a course of constitutional
exigencies which had set in in this
country not many years before and
had for its object to embrace in the
said constitutional guaranty every
| legislative enactment which by its OPP
Grafton might indirectly or remotely
restrict the use of property or liberty
in its widest sense. It's development
was rapid, and finally reached that
J point which has enabled the courts
to stand in the way Of measures for
the public happiness, welfare, morals,
| and progress, which are grown com
mon all over the world, and finally
become expressed in statute laws
here"
OF the underground bakery case he
says:
"The supreme court OF the United
States declared this 10 hour require
ment to be unconstitutional, as de-
| priving workmen, without due process
of law, OF the liberty to work al
long hours as they saw fit in under
ground bakeries without due process
Of law Nochner against New York
19S United States Reports, page AS
The learned court stood to 4. Tha
division certainly showed that thl
matter was one of great doubt. An,
yet. notwithstanding a rule which Il
often repeated by the courts, tina
they viii declare a statute unconsti
tutional only in a case free from
doubt, they declared this statute IN
constitutional. The same court ha
often done the like by a vote OF I,
4. What is to 4 but state o
doubt in the court? The reasoning
(or causistry) in this decision is sub
stantlally the same as that In the ten
ement house tobacco case"
I'm 1884, Mayor Gaynor contir
ues, "the Legislature of this stat
passed a statute that women SHOULD
not work in factories between tn
hours of 8 at night and in the NOR
ing, This statute was intended {
protect the health Of women, an
hence OF their Offspring. Surel
said the great majority of intelligen
people, It is enough that women wor
in factories between the hours OF
in the morning and 9 at night The
therefore had the statute passed tina
they should not work in factories b,
! tween 9 at night and in the mornin
IL is almost uncomfortable that On
gentlemen then composing the Coul
OF Appeals OF this state found in thi
humane and benevolent statute an II
fringement OF the liberty OF womer
guaranteed as they said by the cor
stitution, TO work In factories a
night and as many hours as they sa'
1T. But they waxed eloquent owe
the iniqulty of the statute in its a
tempt to interfere with the propert
and liberty OF women without du
process of law-their property in the
work and wages, and their liberty {
work all night II they saw 1T"
we are soon TO have n new col
stitutional convention in this stat
and trust that Il will make shor
work Of this decision-that IL wi
recall Il without scruple or heslti
ton It is pitifu to see such deci
ions In this country Thlrty-two di
! ferent governments OF the world,
fact every civilized government
the world outside Of this country. h,
an employers liability act, also er
bracing provisions for the taxation
business in which workmen are er
1 ployed to raise a fund for the pa