The Bridgeport evening farmer., 1912-04-02

men, without due process Of law, of
the liberty to work as long hours
as they saw fit in underground ba-
ker1es without due process of law
dochner VS.. New York, 1913 United
States Reports, page 49,. The learned
court stood to 4. That division GER
Of great doubt. And yet, notwith-
standing rule which is often repeat
ed by the courts, that they will de-
clare a statute unconstitutional only
in case free from doubt, they de-
clared this statute unconstitutional.
The same court has often done the
like by vote Of to 4. What is
5 to but a state Of doubt in the
| court? The reasoning in this decision
| is substantially the same as that in
the tenement house tobacco case.
The Liberty of Women.
In 1893 the legislature of this state
| passed a statute that women should
| not work in factories between the
hours of 9 at night and in the
morning. This statute was intended to
protect the health of women, and
hence Of their offspring. Surely. said
the great majority of intelligent people,
it is enough that women work in fac
tories between. the hours of 6 in the
morning and at night. They there
| fore had the statute passed that they
should not work in factories between
9 at night and in the morning. 1t
| is almost inconceivable that the gen.
| tlenen then composing the Court of
Appeals of this state found in this hui
name and benevolent statute an in
| fringement of the elderly Of women,
guaranteed as they said by the con-
stitution, to work in Factories all
night and as many hours as they
| VI a1OnT1nnf
the iniquity of the statute in Its at
| tempt to interfere with the property
| and liberty Of women without due
process of law-their property in their
work and wages, and their liberty to
work all night. if they saw fit.
Judgemade Law.
1t is not at all to be wondered at
that such decisions should provoke a
widespread dissatisfaction with the
courts. The just feeling pervading
| the community is that a bench of
| judges is no more competent than the
legislature to decide as to the wisdom
Or necessity of such laws for the
health safety and progress, and the
material and moral welfare, of the
community. That is matter of en-
| lightened opinion which the courts
have no right to arrogate unto them
selves. The courts of England do not
do it, nor do the courts Of any other
country, except ours. And ours base
+, the right to do so on fundamental or
constitutional provisions for the safety
Of liberty and property, which are not
peculiar to this country at all, but are
! to be found in all systems of govern
ment and Jurisprudence. No such
meaning was ever given to these safe
| guards of property and liberty until by
| the judges in this country. It is
judge-made law, pure and simple.
Judges Banter Each Other.
I have given instances enough to ex-
| press my meaning. I might also refer
| to the decisions of our Court of APP
pealS declaring statutes void which
provided that employees on state or
! municipal works under contractors
should not be paid less than the pre-
vailing rate Of wages, nor required
i to work more than a certain number
of hours a day. These decisions went
| to such lengths that finally that court
! itself was unable to reconcile, or even
explain them, and the learned judges
| fell to ridiculing and bantering one an
other for the extremes their utteran-
ces had reached (See People ex rel.
Cossey VS.. Grout, ITO New York Re-
! ports at page AID. I do not need to
go into these decisions further, for
| they so exasperated the people of this
state that they swept them all out Of
existence-'recalled' them, If you Will
| by a constitutional amendment In
| 1905 (See Sec. 1 of Art. II of our
state constitution. Some asp1rants
| for the office of President are just now
| talking about the recall of Judicial
decisions. as though it were new idea.
| It is not new at all. We have been
doing it for long time, and we shall
have to do a good deal more of it be-
| fore we get through. We do it very
easily in this state, because our con-
stitution itself requires that we have
| a new constitutional convention every
| twenty years; and meantime we fire.
quently pass constitutional amend
| ments.
Constitution Needs Change.
| 1T were we'll if the constitution of the
| United States were amended by the
addition of a provision requiring it to
! be reconsidered by a constitutional
convention every twenty years, the
same as in this state, and in many il
not most of our states. constltu-
| ton must grow and change, like every
| thing else, but the more gradual the
better AS Macaulay says of the Brit
| ish constitution, Although the
was an instant of time in which the
| major part Of it was not old" That
| is the way to amend constitutions and
| laws-gradually and prudeptly. But
the, class of decisions which L have
mentioned never had any justification
under the constitution, and 1t is an
| noying to have to keep on amending
the constitution to nullify them
knitting Liability Laws.
And now let me mention the decision
| of the Court of Appeals of this state
| last year which overthrow the employ
ers' liability statute passed by our leg
| islature the year before. The rule of
| the common law is that the law casts
upon all employees the necessary or
inherent risks of the work or business
| in which they are employed. Some
| opinions Of judges clumsily say that
the employee assumes" these risks.
He does no such thing. He is not
consulted about it at all. The COM
mon law casts such risks upon him.
This statute changed the common law
dangerous employments, to use the
acted that the said risks should be ia
the employer The legislature thought
It had a perfect right to do this, and
was so advised by the ablest advisers.
| Indeed, did we not all think that the
| legislature had the right to do away
with or change any common law rule
| as it might see fit? The courts, in
Guiding the highest court in the land,
| have often decided that no one has
any property right in any rule of the
common law, and that such rule may
be taken away or changed at the will
| of the legislature. But our Court of
| Appeals declared this statute "uncOn-