The Bridgeport evening farmer., 1912-04-02
DO OUR COURTS STAND IN THE way
OF SOCIAL AND ECONOMIC PROGRESS?
By Hon. William Gayo Mayor Of the City Of New York; and
Former Justice Of the Supreme Court Of the State New York

Do the courts in this country stand
in the way Of social and economic pro.
| gress? You ask me to give my views
| on this. I have only time to try tt
condense what 1 frequently said pub.
licly thereon while I was a Justice
of the Supreme Court, and since
| Yes, they do, and have done so fol
a long time. But this is nothing new
Tn all ages, and pretty much every.
where, the courts have tried to apply
their legal rules of thumb to social
commercial and economic matters, al.
ways with signal failure, and gener-
ally with injury to industry, com.
merce and the social good
| Age Against Progress.
! Nothing is more distressing than tc
rule, set themselves against the mani
fest and enlightened will of the COM
munity in matters Of social, economic
or commercial progress. The same is
true in matters of morals and religious
growth also. Jesus, Socrates, and
| many who came after them, age after
| age, fell victims to, judicial narrow
mindedness. But the adverse decis-
| ions 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 de-
| cision of the United States Supreme
| Court remanding the negro boy bred
| Scot back into human slavery only
FASTENED the coming liberation Of the
slave.
But let me come close to what you
| ask of me. Let me cite some Of the
recent judicial decisions which were
planted right in the path of economic
and social progress
The Tobacco Case.
was decided by the Court of Appeals
of this state in 1885 (Matter Of Jacobs,
| SO New York Reports, page 98). Good
| men and women who went around al
leviating suffering and distress in poor
tenements of the overcrowded districts
of this city found tobacco being man
ufactured into it's various products in
these tenements. They found little
children born and brought up there in
the unwholesome fumes and smells of
tobacco. They applied to the legis-
lature, and had a law passed forbid
| ding the manufacture of tobacco in
such tenements for the future. The
court held that it was demonstrations
ar'-that is to say, that the constitu-
ion of this state permitted the manu-
facure of tobacco in poor tenements,
and that therefore the legislature
could not forbid it. They professed to
find this constitutional permission la
tent in the general provision in our
state constitution that no one shall 'be
deprived Of life, liberty or property
without due process of law The
court waxed eloquent on the subject.
1t said that the tenant had the right
under this provision of the constitution
| to do what he liked in the way of
| lawful business in his tenement. 1t
said that the statute arbitrarily de-
prives him of his property and some
portion Of his personal liberty" by
preventing him from using his proper
ty, i. e., his tenement leasehold, as he
saw fit. The claim that the manufac-
detrimental to health especially to the
| health of children, and might there
fore be prohibited by the legislature,
received short shrift from the ven-
cradle and learned judges.
Stretching the Constitution.
They set themselves up as better
| judges Of the question of health than
| constitutional guaranty meaning
| never dreamed of in England from
which we took it. The foundation of
| it is in Magma Charta. But no one in
England up to this hour has ever i'm
! agined that it had reference to any
| thing but the. direct taking of a mans
property. E., of his chair, of his COW,
of his lot-or the direct restraining ~of
| his physical liberty. Nor did it occur
| to our forefathers when they took it
from England and incorporated it into
those fundamental instruments of gov
eminent in this country, state and ma
tional, which we call constitutions that
any meaning would ever be given to
| it except that which it then had. It
! had then only a direct meaning in res
pect of the taking of a mans proper
| ty or the depriving him of his liberty.
Moreover, it was check on the execu-
tive branch of government only in
England, and not on the legislative,
and it was put into our constitutions
| in that sense No one anticipated that
| it would ever be interpreted as a check
on legislative power also, although that
| Interpretation has naturally followed
from our system Of government. But
| the carrying of 1t to. extremes by cos
| mistry is another thing.
This tobacco case, in which the
courts showed SO much sensitiveness
| for the rights of property and iiber-
| ty, and so little for physical, mental
| and moral health, was the final and
| full outcome of a course of constitu-
| tional exegesis which had set in in this
/ country not many years before, and
| had for it's object to embrace in the
said constitutional guaranty every
| legislative enactment which by it's op-
Grafton might indirectly or remotely
| restrict the use of property or liberty
| in it's widest sense. It's development
point which has enabled the courts to
stand in the way of measures for the
public happiness, welfare, morals and
progress, which are growing common
| all over the world, and finally become
expressed in statute law here.
Underground Bakeries.
Some years later similar good and
intelligent influences brought about
the enactment Of statute in the leg
| islature of this state for the sanitary
| regulation of underground bakeries
for the sake of the health of those en-
/ J. t.