New-York tribune., 1912-04-01
court BARS PROGRESS
So Says Gaynor in Article Writ.
ten for "BenCh and Bar"
QUESTION NOT A NEW ONE
Mayor Cites Decisions Planted in
Path of Economic and Social
Advancement.

The courts. which have figured promi-
nently ir the discussions of the pre-conven-
tion Presidential campaign, arc attacked BY
Mayor Gaynor in an article published
to-day 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.
His answer Is
Yes, they do and have done so for long
time. But this is nothing new. In all ages
and pretty much everywhere the courts
have tried TO apply their legal rules OF
thumb to social, commercial and economic;
matters, always with signal failure, and
generally with injury to industry, com
merce and the social good.
Nothing is more distressing than TO see
bench OF judges-old men, as a rule-set
themselves against the manifest and en-
lightened will of the community In matters
OF social, economic or commercial progress
The same is true In matters OF morals ana
religious growth, also. Jesus, Socrates ana
many who came after them fell victims 10
judicial nGrrowmndedness. But the ad-
verse decisions of courts have not been
able to stop human progress.
Mayor Gaynor then cites several recent
judicial decisions which ne SAYS were
planted right in the path of economic and
social progress" Among these are the de-
cisions declaring unconstitutional the laws
forbidding the manufacture Of tobacco IN
tenement houses and regulating under
ground bakeries. the hours of labor Tor
women in factories and overthrowlng the
New York State employers liability law.
OF the tobacco decision the Mayor writes;
This tobacco case. III which the court
showed so much senSltlveness Tor tue
rights of property and liberty and so htte
for physical. mental and moral health, was
/ 81, Of
constitutional eXegesis which had set III IN
! this country not many years before ana
had for its object TO embrace In the salo
constitutional guarantee every leelsla'ine ~,
enactment which by its operation might IN
directly or remotely restrict the Use ol
property or liberty in its widest sense. ,.
Its development was rapid and hnalIy
reaC he'd that point which has enabled the
courts 70 stand I'm the way OF measures
for public happiness, welfare. moraiS ana
progress, which are grown common All over
the world and finally become "Apl'S'eu III
statute law here.
saws:
The Supreme Court of the United states
declared this ten-hour requirement 10 pe
unconstitutional as depnvng workmen
without due process Of law. Of the I'D
erty' To work as long hours as they sa"
ft I'm underground bakeries WITHOUT duS
process Of law The learned court st9ou
TO l. That division certainly showed that
the matter was one of great doutt. And
yet. Notwithstanding the rule Whlch rs
often repeated by the courts that they VII
declare a statute unconstitutional on! IN
a case free from doubt, they declared tnls
statute unconstitutional The same court
has often done the Ike by vote OF 10 T.
In 1893 tho Legislature of this state
passed a statute that women should not
work In factories between the hours OF =
at night and IN the morning surely
said the great majority OF Intelligent peo
pie. IL is enough that women work IN rae
tories between the hours of . In the morn
ing and at night. They therefore hah the
statute passed that they should nor "oth
I'm factories between at night ana III
II Is almost inconccivabla that the gen
tlemen then composing the court or AP-
peaIs found In this humane ana behcno
lent statute an infringement of the I'D
crty" of women. guaranteed az they SAID
by the constitution, to work IN factories
al night and "a many hours as th"S "a"
nt
Speaking Of the employers liability law
| decision. he says:
We arc soon 10 have a new constitutional
convention in this state. and ! tiuSt Ilat
II will make short work OF this decision
that n will recall II without scTuple OF
hesitation. It is pitlful to see such De
Cisons I'm this country. ny ,'"n ulHt.
ent governments Of the world, III fact
every civilized government IN the "oiId
outside OF this country. has an employers
liability act. also embracing provisions tot
The taxation OF businesses In which work
men are employed To raise fund Tor the
pavr1ent OF such damages for deaths ana
Injuries by accidents
The Mayor ended by referring to the
present agitation regarding the recall
Some aspirants for the office OF Presi,
dent are lust now talking about the recall
az judicial decisions as though II were
now idea. II is not new at all. We have
been doing II for a long time. ana we shalI
have To do good deal more of II before
We get through. We do II very easily IN
this state because our constitution itseli
requires that we have n new constitutional
convention every twenty years, and mean
time We frequently pass constitutional
amendments. ,,, -, ,o
United States were amended by me addl-
tion of provision requiring IL 10 he re-
considered by constitutional convention
every twenty years. the same as IN inns
state and in many If not most OF our
states.