The Detroit times., 1912-04-02

Il
| therefore had the statute passed that
they should not work In factories be-
tween 9 at night and 8 In the morn
ling. II Is almost inconceiyable that
the gentlemen then composing the
court OF appeals OF this state found
| in this humane and benevolent statute
an infringement OF the liberty OF
women, guaranteed as they said py
the constitution, to work In factories
all night and as many hours as they
saw ut. But they waxed eloquent
over the iniquity or the statute In tts
lattempt 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 II they saw
ht. 8
Ii 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 a matter OF en-
heightened opinion which the courts
have no right to arrogate unto them
selves. The courts OF England do not
do II, 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 oil systems OF
government and Jurisprudence. No
such meaning was ever given TO these
safeguards of property and liberty un-
| I'll by the Judges In this country II
Is judge-made law, pure and simple.
Judges Decide Over Legislature. y
The courts themselves came to see
after awhile that the indirect and ex-
IRENE construction they were putting
on this liberty and property" pro-
vision Of the constitution, instead OF
keeping to the plain and ordinary
sense In which these words had al
ways been used and understood In
England and here In constitutional
provisions and statutes, was unten-
able and mischievous II stood In the
way of legislation necessary for the
general welfare, and that would not
be tolerated by enlightened public
sentiment In this country any more
than Il is or ever has been anywhere
else In the world II was opposed to
the long.settled maxim In human as
well as In natural law, that the use
of private property was subordinate
to the general welfare, and could be
restricted to conform thereto, al
though made less valuable thereby.
They therefore began TO slide by or
climb over their decisions by declar-
ing that Notwithstanding this consti-
tutional provision, 1. g., the indirect
and far-fetched construction they had
put upon IL, legislation tending TO the
health, comfort, safety, and general
welfare of society" would be except
ed and upheld. This they assumed 10
do under what they called the general
police power OF goyernment--an
elastic, undefnable and even mislead-
ing phrase, as they freely admit In
their decisions. But who was to be
the Judge OF such legislation, 1. e., as
to whether II tended to the general
health, comfort. safety and welfare?
The legislature, representing the com.
munity? No; the judges took that
unto themselves They Judge thereof
over the head OF the legislature. and
declare legislation unconstitutional
which exceeds their opinion OF what
is economically or socially wise or
beneficial No such power was ever
given to the courts. They have sim
ply taken II away from the legislative
department of government. They
have set themselves up as the pro
tectorsH OF society against the law
making power, safe guarded as II Is
by the consent OF two houses and the
executive veto. They do not seem TO
consider who Is TO protect us against
them in their judicial legislation. In
the cases OF the underground
bakeries, the manufacture OF tobacco
In fenements, the working of women
in factories az night, and so on, was
not the legislature, representing the
cohmpnity, az fit. at least. as any
im(ge, or bench Of few judges.
pc moftals like the rest OF (us, 10
Ne az the wisdom or advisabjlity Of
kws passed, from the stafdpolnt
moral. economic and 1oclEl Vel !
40 I'd progress OF socif
TX f-4-------- -
BAL Hastings. Ene sy-
Nrigy &c the author 81. n
manIess NsIay Su1faee