Denver labor bulletin., 1917-08-11

appeals of New York show clearly the
judicial awakening to the facts of life.
In 1907, in the Williams case, that
court held that an act prohibiting
night work for women was unconsti-
tutional. In 1915, in the Schweinler
case it held that similar night work
act was constitutional.
decisions. But the change in the atti-
tude of the court had actually come
after the agitation of 1912. As late
as 1911, when the court in the Ives
case held the first accident compensa-
ton law void, it refused to consider
the facts of life, saying:
1.-THE report (of the commission ap-
pointed by the legislature to consider
that subject before legislating) is
of statistical tables, extracts from the
works of philosophical writers and the
industrial laws of many countries, all
of which are designed to show that our
own system of dealing with industrial
accidents is economically, morally, and
legally unsound. Under our form of
government, however, courts must re-
gard all economic, philosophical, and
moral theories, attractive and desir-
able tho they may be, as subordinate to
the primary question whether they can
fringing upon the letter or spirit of
our written constitutions. In that re-
spect we are unlike any of the coun-
tries whose industrial laws are re-
ferred to as models for our guidance.
Practically all of these countries are
so-called constitutional monarchies in
which, as in England, there is no writ
ten constitution, and the parliament or
lawmaking body is supreme. In our
| fol Dv,l fofa
tions are the charters which denmark
the extent and the limitations of legis-
lative powers; and while it is true that
the rigidity of a written constitution
may at times prove to be hindrance
to the march of progress, yet more
often its stability protects the people
against the frequent and violent fluc-
tuations of that which, for want of
better name, we call public opinion"
On the other hand, in July, 1915,
in the Jensen case, the court holding
valid the second compensation law
! (Which was enacted after a constltu-
tional amendment), expressly consid-
cred the facts of life, and said:
eve should consider practical ex-
perience, as well as theory, in deciding
whether a given plan in fact consti-
tutes a taking of property in violation
of the constitution. A compulsory
scheme of insurance to secure injured
workmen in hazardous employments
and their dependents from becoming
objects of charity promotes the pub
lie welfare as directly as does an in
surance of bank depositors from loss"
The court reawakened to the truth
of the old maxim of the civilians ex
facto oritur jus. 1t realized that no
law, written or unwritten, can be un-
derstood without full knowledge of
the facts out of which it arises, and to
which it is to be applied. But the
struggle for the living law has not
been fully won. The Lochner case has
not been expressly overruled. Within
six weeks the supreme judicial court
of Massachusetts, in supposed obedi-
ence to its authority, held invalid
nine-hour law for certain railroad en-
ployes. The supreme court of the
United States which, by many decis-
ions, had made possible in other fields
the harmonizing of legal rights with
contemporary conceptions of social
justice, showed by it's recent decision
in the Coppage case the potency of
mental prepossessions. Long before,
it has recognized that employers land
their operatives do not stand upon an
equality; that "the legislature being
familiar with local conditions, is pri-
marily the judge of the necessity of
such enactments." And that unless a
prohibition is palpably unreasonable
and arbitrary, we are not at liberty to
say that it passes beyond the limita-
ton of a states protective authority"
And in the application of these prin-
ciples it has repeatedly upheld legis-
lation limiting the right of free con-
tract between employer and employe.
But in the Adair case, and again in the
Coppage case, the supreme court de-
clared unconstitutional statute which
prohibited an employer from requiring
as a condition of his securing or re-
tanning employment, that the work
man should not be a member of la
Dor union, refusing to recognize that
congress or the Kansas legislature
that such prohibition was essential to
the maintenance of trade unionism,
and that trade unionism was essential
to securing equality between employer
and employe. Our supreme court de-
clared that the enactment of the anti
discrimination law which has been en-
acted in many states was an arbitrary
and unreasonable interference with the
right of contract.
The challenge of existing law does
not, however, come only from the work
ing classes. Criticism of the law is
widespread among business men. The
tone of their criticism is more cour-
teous than that of the working classes;
and the specific objections raised by
business men are different. Business
men do not demand recall of judges or
of judicial decisions. Business men do
not ordinarily seek constitutional
amendments. They are more apt to
desire repeal of statutes than enact
ment. But both business men and