The sun., 1912-08-02
ROOSEVELT CR|T|C|SES
n. Y. COURT Of APPEALS
Decisions in WOrkmcn's Com.
pensation Act and Subway
Case Compared.
CAPITAL WAS FAVORED
Labor Denied Consideration
When Industrial Lcgi>la-
tiOn Is Involved.

OF Appeals in the workmcn's compensa-
ton act and the recent opinions of the
same court In the subway case are com.
pared by Theodore Roosevelt in the cur
rent issue OF the Outlook. Col. Roosevelt
apparently thinks that vested capital got
better treatment than labor lie SAYS:
There has recently occurred striking
instance Of the manner in which the court,
often lot public exigcncy and public opinion
bend their Interpretation of constitutional
| provisions when tho interests Of invested
capital are also largely involved on tho
| side which public need and sentiment favors
whereas the public need and prevailing
| sentiment are denied any consideration
when so-called labor" and welfare" legis-
lation is involved. The instance in point
IL the decision recently handed down by tha
New York Court of Appeals in the suits
brought to restrain tho carrying out Of
recent negotiations for the construction
and operation OF rapid transit lines within
| Greater New York. The opinion Of tho
court is interesting reading when compared
| with the decision in Ives VS.. South Bnfalo
Railway Company. 2Oi n. Y. Ell. in which
the same court held unconstitutional tls
wOrkmen's compensation act drawn by tho
commission appointed by Gov. Hughes
Curiousiy enough. the recent opinions in the
/
emphatic indications that at least some
members Of the court itself realized that
they were applying to the statute. which
large business interests wished held constl-
| tutional, a progressive standard OF consti-
| tutional construction which they had re.
fused to apply TO statute desired by work
ingmen and opposed by the rapacious
element among employers.
Col. Rooseve cit then takes up the proyis-
ion Of the State Constitution which for
bids a municipality loaning its money or
credit In aid Of any private enterprise.
especially railroad corporations. IA matter
which received serious consideration in
the letting OF the subway contracts. Col.
Roosev elt points out that j. =. Morgan h
Co. and Kuhn. Loeb Il Co. announced that
they had agreed to loan to the INTERIOR
ough and the Brooklyn Rapid Transit
companies u sum in excess of s210, 10000
as might be needed to carry out their part
OF the proposed contracts with the city,
contingent upon the decision of the New
York Court of Appeals The court up-
held with two dissenting votes the law
fulness and constitutionality of the plan
which seemed to fall SO clearly within the
letter OF the constitutional provision"
| Col. Roosevelt adds
| Some of the things said by the members
OF the court in reaching this conclusion or
| in pointing out its significance arc most
| interesting. They stand out in markcd con
| trast TO the mental processes of the Sane
tribunal in other cases under tho Consti'u-
tion where the rights OF labor were involvci
in broad construction of that document.
For example. in the majority opinion.
written by Judge liiscock. an associate
Judge. who may be up for election this
| fall to serve rs IA full and regular member
of the court to succeed one Of the two Judges
retiring under the age limit. is the following:
| Col. Roosevelt then quotes Judge His
cocks opinion. in which ne said that the
court had nothing to do with the wisdom
of the proposed contracts. but whether
the constitution permitted the legislation
and contracts in question. Col. Roose-
welt says:
This is doubtless sound doctrine. but II
II is IL should have been applied to the work.
men compensation act case. A consistent
member of the court is the brilliant and
venerable Chief Judge Cu,cn. He viii
not Construe a constitutional provision
| as to meet any public exigency or 80 a, 10
defer to any strong public sentiment as
| to what n governmental agency should he
permitted to do no matter whether the
legislation at the bar of the court il desired
| hy capital or by labor. Interesting indeed
| * his dissenting opinion in which hc CO.
gently CharaCteriZes the action Of the ma
JOrity. For example. at one point he says:
with the utmost respect for the aioriy
OF the court. fear that the decision about
to be made will lead TO practical nut'a-
ton OF the constitutional restraints hy
| methods OF evasion. IL may. however.
prove interesting TO that school of pub
licists and political economists which has
always maintained the futility of restraints
imposed by the people themselves on their
| own extravaganza in the expenditure of
public moneys on the ground that when
the popular demand Is not great the ~
straints are unnecessary and when great
they are unavailing"
The dissenting opinion of Judge Werner
was vigorous, Col. Roosevelt says but
"this plea from the author of the opinion
Of the court in the workmen's compen,a-
ton act case fell on deaf cars in the SUBJ
way case" Col. Roosevelt says:
Nevertheless what tho learned Chef
| Judge characterized as "a practical nuhcs-
ton OF the constitutional restraints by
| methods OF evasion" was consummatcd
in obvious but unauthorized Difference 70
the changed conditions which have coms
| about since the prov vison of the Constiti.
ton was adopted and in even moro obyiou,
Difference to the urgency OF the public need
| and the unanimity Of the public and official
opinion. Yet the accomplishment of tins
result AZ to "a constitutional provision rcas-
onably definite and explicit in its character
even by an cxtra-lcgal and quit" una'i-
thOrlzcd method of constitutional inter-
pretation Is not deemed radio al or dangerous
by those papers tall now supporting W.
Taft and Gov. WILSON, which expressed tls
most lively horror Of myaction in crtlci"ina
the court for it's decision in the worhmras
| compensation act case. Now let the rcoi''
| Of New York State face these facts With $40
honest intention of proitmg hy thcm.
Which Is really radical and dauEeron'.
| especially To our courts thcm-clNc> no
action OF the court in Interpreting IN" r."
without constitutional Warrant in 'hs ra-.
where capital was Interested or n thr"ty u
broad construction which would c"r'alniv
have warranted them in deciding ~ favor
OF tho constitutlonality of the worLmen'
compensation act. where labor was ni"r-
estcd. or the action propose by which ih'S
facts of public need and public seni'm'h'
could In legitimate fashion receive rr"T"f
weight in the Interpretation of a gwen
provision OF the Constitution ,-b merely
that in certain cases Of great need IN" p'''
ple be given the power to do for IA" p"ops
In ncCordanca with tina ('nn.tiiutlpu Idt