New-York tribune., 1918-07-14
VOLUTION OF THOUGHT IN u S. SUPREME COURT
In6ltration of Advanced Ideas Shown in Oreoo.
Law Governing Employment of
Women in Industries

sness were the sale Of liquor, oleo-
margarine, cigarettes, futures IN
grain or other commodities, stocks
on margin, keeping billiard halls,
selling trading stamps. The state,
it was apparent, was not limited
merely to regulation but could pro-
hibit.
What was the evil the state sought
20 correct? The court once had
said (and it was Justice Holmes
who said it,: "Whether measure
relating to the public welfare is
arbitrary or unreasonable, whether
it has no substantial relation to the
end proposed, is obviously not to
be determined by assumption or by
a priori reasoning. The judgment
should be based upon considera-
ton Of relevant facts, actual or pos
sible-ex facto jus oritur. That
ancient rule must prevail in order
that we may have system of living
law"
Basis Of the
Dissenting Opinion
There followed in the dissenting
opinion on the basis Of this san
cient rule" comprehensive and ex-
haustive inquiry into the evils of
private agencies, ethe charge Of a
fee without return of service for
it, collusion between agents and en-
ployers, exorbitant fees, inducing
workers to leave for ''better jobs"
SO another fee could be collected,
collusion with forces Of immortality,
fraud and extortion. Instead of re-
lieving the labor market, it was
shown these agencies congested it,
and they increased idleness and ir-
regularity Of employment. The ex-
perience of other states was called
on to show that regulation was not
enough, that the evils of private
agencies were ineradicable and in
herent so long as fees were charged,
and that "many believe the fee
charged is the root of the matter" +"
The opinion turned to the problem
as it was manifested in the State of
Washington, showing that the
statute in question was a step in
the direction Of overcoming indus
trial maladjustment and unemploy-
ment. And then, as an indication
of the condition the statute was
meant to meet, Justice Brandeis
quoted from Holden VS.. Hardy, 1863
U. S., 366-387 ". in view of
the fact that from the day Magma
Charta was signed to the present
moment amendments to the struct
ure of the law have been made with
increasing frequency, ii is impossi-
ble to suppose that they will not
continue and the law be forced to
adapt itself to new conditions Of SO.
ciety, and particularly to the new
relations between employers anc
employees as they arise
Justice Holmes and Justice
Clarke concurred III this dissent.
! Not many cases disclose so clear.
~ as this one the character of thc
split i'll the Supreme Court and the
procedure and method of a SO.
called realism" adopted by the
liberal" wing Of the court in ius
tlfying It's stand On problems pre-
sented for consideration. But since
that decision there have been gooc
many cases in which the court ha.
split definitely one way or another
on problems involving the relation
of modern forms Of industry anc
commerce to the state of society il
It's larger aspects. For convenience
these cases are here summarized
with their arguments and theil
variations i'll opinion.
Wilson VS.. New. This was the de
oislon Of the constitutionality Of The
Adamson eight-hour railroad law
The decision was handed dow,
March 10, 1917. The case cam;
from the United States District
Court of the Western District oil
Missouri on an appeal, holding thai
it was not within the power of Con.
gress to enact such a law. Justice
White handed down the opinion, de-
claring the law was constitutional
He said the power to enact such 3
statute was the inevitable result Of
the authority of Congress to protect
Interstate commerce. Congress. he
said, has the power to make ar
hours of service law. In nation
wide emergency, such as existed
when the law was passed Conores,