New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-01-25

bake-oven. you know, IS unoersi LUZ.
And II any Of you ever were NJ "rd
oven / do not need to say auo..,e md
about bake-ovens. 1T is the hot'e Soo out ~
most uncomfortable place on the race Vi
the earth. These bake-ovens are eA
ceptional. They are underground ana a.
hot as Tophet, II | may use such an
preston here And Mr.. RooseNeI 10
reported in the newspapers AS yar. law
prevented the employment OF men ~,
filthv bakeries for longer than ten hourS
day - e,a.,,rad tho
Srnrame Court Of the United States ior
decIaring the statute unconstitutional.
reference to the reports Will snow tnat
ALI the courts OF New YORK. that ls' t lJ
County Court, the Appellate DIVISION anu
the Court Of Appeals, held me S svI eyn
stitutional. and that it was the oupIe,iii,e J.
Court OF the United States which heio u
10 be unconstitutional. The statute was
not confined 10 bake-ovens that hn,
underground. or TO cellar paht,iSS, I'D
applied Unfortunately TO sanltal ar, an
unsantary conditions AS matter Oh taSt,
the oven in Lochner's bakery was apos
ground and mis- premises were eACcp.,"n
ally well ventilated. The other se0o -
OF the statute provided l9r SUI" on,nve
plete sanitation as practically 10 rel'.no
all danger Of injury TO the food or 10 thS
health of bakers There was no prool
whatever submitted TO the court that 'ne
employment was injurious 10 neallh "
the conditions filthy, unclean OF u"-
healthy. $40
The power Of the Legislature 20 pro-
hibit the manufacture OF bread OF oth 81
articles Of food IN cellars-'nlthE or
eleanor in underGround bake-oIens, ~
in any unsantary places Whatever,
whether above OF below ground. Was NOT
Questioned by the court In fact. the re-
naming provisions Of the statute wnich
secure. If duly enforced, sanitary coma.
tons were not inlerfered with or sci
aside By the courts. and, we are Informed
they have ever since been ana. SOM
what amended. are now being ENFORCED
as valid for all purposes. Inc act was
not confined in its operation 10 "orhtne,
but applied 70 every one employed uhN
or night. above or below ground. III rae
tories In which bread. biscuits or conieS-
tlonery OF any kind was manufactured
Legislature Unhanlpered.
OF the Knisley case. In which the deci-
sion was recently denounced BY MI
Roosevelt, Mr.. Guthrie says;
An interesting example OF the opeidtlcfl
OF a statute in connection win eS'a J.
lished rules VI law Will be found IN tne
case OF knsley VS. Pratt, w " g
372. The Legislature had prescribed GER
tain devices FOR the protection VI women
and children, Including Il provision thst
cCgs on machinery should b. propeI>
guarded. In enacttng TINS provision as
the courts were bound To assume by the
settled rules OF construction, the Legs
lature was fully aware ot the eAlstlis
law in the state OF New York IN regard
10 the assumption Of ordinary rlsks OF
en- ployment by men and women OF iul!
age and capacity. and the plaintiff IN that
case was OF full age and capdclt! ana
was fully aware Of the danger she was
running In approaching TOO near Hl"
Cf inery in operation.
drawn IL would have proyided-assumlho
the craftsman and the Legislature 50 IN.
tcrded-that the rule OF assumption OF
risk should not apply TO cases WITHIN ts
ptrvicV. in other words, that the master
should be liable for any injury 70 SET
want arising from the master neglect 70
provide TIA. protection required by the
statute, whether or not the servant kntW
of such neglect or contributed III ANY ""'
10 his own injury.
No provision OF state or federal cohst-
tuition prevented the Legislature from en-
acting that the employer should De aosV-
lUtely liable FOR the consequence OF ms
own deliberate neglect 10 obey pToN-
SON intended TO protect human life, ana
particularly the lives Of women ana cIIl-
dren. There is not the remotest lhtlild-
ION by the court In the knisley case mat
the Legislature could not so alter the law
AffpT tis DECISION II lidN Nhof '''N
announced change IN the law Cou,''
have been readily made Wlthln a Wees
FOR the Legislature was then III sesStoi.-
February. 1895. Yet seventeen years nav
passed without such an enactment, anu ~
IN the mean time the Court OF Appeals
las been assailed before the whole cou''-
try for it, lack OF sympathy WIN the
poor and helpless and with social prog
ress, .Lo
Kuislev case has been recently over
ruled by the Court OF Appesls IN fit%-
water W. Warren. 216 y. Y. 355. But
many lawyers believe that the court
might better have left this change 20 the
Legislature. which could have mace II
seventeen years ago II II had so des!ttu,
and not have furnished additional grounn
FOR the criticism that our courts are re-
sorting 10 judicial legislation
Despite the Fitzwater case. IT. wouiu
still be wise for the Legislature. II Il de-
sres the law so. 10 enact a properly
drawn statute declaring that wneheVer a
statutory provision requires a master 10
supply guards or other protection Tor ms
servants IN hazardous employments or IN
connection with the use OF dangerous ma
chinerv his neglect 10 do so shall render
him liable irrespective Of the doctrines
OF assumption OF risk. fellow servants
fault or contributory negligence
Fair Samples Of Criticism.
Mr.. Guthrie declares that these are fair
samples OF the criticism. saying:
The Judges are being misrepresented
and assailed on all sides. They cannot
defend themselves The bar at large so
FAR has seemed Indifferent and I'm the
great forum OF public opinion judgment Is
going by default
At the afternoon session a paper by
Henry W Taft. OF New York on The
Recall OF Decisions" was discussed This
evening Ex-Governor Herbert :. Hadley.
Il Missouri delivered an address on
Progressive Jurisprudence.
Immediately afterward reception Was
given Mr. Hadley and the officers and
members OF the New York State Bar As
ISOLATION at the Fort Schuyler Club. The
convention closes tomorrow night.