.,
The Commoner.
MAY 17;112'
Do Our Courts Stand in the Way of
Social and Economic Progress?
William J. Gaynor, mayor of tho city of Now
York, and frequently mentioned by progressive
democrats in connection with the democratic
nomination for president, recently wrote for
"Bench and Bar" an instructive address on the
subject, "Do Our Courts Stand in the Way of
Social and Economic Progress." Commoner
Readers who are not acquainted with Mayor
Gaynor's good record will get an insight into
his fine character by reading this address which
The Commoner prints in full. Mayor Gaynor
wrote as follows:
. Do the courts in this country stand in the way
of social and economic progress? You ask me
to give my views on this. I have only time to
try to condense what I frequently said publicly
thereon while I was a justice of tho supremo
court, and since.
Yes, they do, and have done so' for a long
time. But this is nothing new. In all ages,
and pretty much everywhere, the courts have
tried to apply their legal rules of thumb to
social, commercial and economic matters, al
ways with signal failure, and generally with
injury to industry, commerce and the social
good.
Nothing is more distressing than to see a
bench of judges, old men, as a rule, set them
selves against the manifest and enlightened will
of the community 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
narrowmindedness. But the adverse decisions
of courts have not been able to stop human
progress. Sometimes they baffle it for the time
being. Sometimes, by creating exasperation in
the intelligent mind, they accelerate it. Not to
quote other instances, the decision of the United
States supreme court remanding the negro boy
Dred Scot back into human slavery only has
tened 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 tenement house tobacco case was decided
by the court of appeals of this state in 1885
(Matter of Jacobs, 98 New York Reports, page
98). Good men and women who went around
alleviating suffering and distress in poor tene
ments of the overcrowded districts of this city
found tobacco being manufactured into its vari
ous 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 legislature, and had a law
passed forbidding the manufacture of tobacco
in such tenements for the future. The court
held that it was "unconstitutional" that is to
say, that the constitution of this state per
mitted the manufacture of tobacco in poor tene
ments, and that therefore the legislature could
not forbid it. They professed to find this con
stitutional permission latent in the general pro
vision in our state constitution that no one shall
"be deprived of life, liberty or property with
out due process of law." The court waxed elo
quent on the subject. It said that the tenant
had the right under this provision of the con
stitution to do what he liked in the way of
lawful business in his tenement. It said that
the statute "arbitrarily deprives him of his
property and some portion of his personal
liberty," by preventing him from using his
property, i. o., his tenement leasehold, as ho
saw fit. The claim that the manufacture of to
bacco in such places was detrimental to health,
especially to tho health of children, and might
therefore bo prohibited by tho legislature, re
ceived short shrift from the venerable and
learned judges. They set themselves up as
better judges of the question of health than
the legislature. They gave to this constitu
tional guaranty a meaning never dreamed of In
England from which wo took it. The founda
tion of it is in Magna Charta. But no one In
England up to this hour has ever imagined that
it had reference to anything but the direct tak
ing otaMn'B property i. o of his chair, of
his cow, of hla lot or tho direct restraining of
his physical liberty. Nor did it occur to our
fprefathers when they took it from England
and incorporated it into those fundamental ln
itrumenti of government In this country, state
and national, which wo call constitutions, that
any meaning would ever bo given to It except
that which It then had. It had thou only a
direct meaning In respect of the taking of a
man's property or tho depriving him of his
liberty. Moreover, it was a chock on tho 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 bo Interpreted as a chock on
legislative power also, although that intorpre
taion has naturally followed from our system
of government. But tho carrying of it to ex
tremes by casuistry is another thing. This
tobacco case, in which tho court showed so
much sensitiveness for tho rights of property
and liberty, and so little for physical, mental
and moral health, was tho final and full out
come of a course of constitutional exegesis
which had sot in in this country not many years
before, and had for its object to embrace in tho
said constitutional guaranty overy legislative
enactment which by its operation might in
directly or remotely restrict the use of proporty
or liberty in its widest sense. Its development
was rapid, and finally reached that point which
has enabled the courts to stand in tho way of
measures for tho public happiness, welfare,
morals and progress, which are grown common
all over tho world, and finally become expressed
in statute law here.
Some years later similar good and intelli
gent influences brought about the enactmont of
a statute in the legislature of this state for
the sanitary regulation of underground bak
eries, for the sake of tho health of those em
ployed in thorn and of tho community generally.
The statute recognized the hot and uncomfort
able conditions of those bakorleB and how easy
it was for them to become unsanitary and result
in unsanitary bread. It therefore prescribed
a list of sanitary safeguards, such as drainage,
plumbing, furniture, utensils, washrooms,
closets and tho like, and also that employees
therein should not work more than ten hours
a day, the work being principally done in tho
night time. The supreme court of tho United
States declared this ten hour requirement to bo
unconstitutional, as depriving workmen, with
out due process of law, of tho "liberty" to work
as long hours as they saw fit in underground
bakeries (Lochner v. New York, 198 Unitod
States Reports, page 45). The learned court
stood 5 to 4. That division certainly showed
that the matter was one of great doubt. And
yet, notwithstanding a rule which is often re
peated by the courts, that they will declare a
statute unconstitutional only in a case free from
doubt, they declared this statute unconstitu
tional. The same court has often done tho like
by a vote of 5 to 4. What is 5 to 4 but a state
of doubt in tho court? The reasoning in this
decision is substantially the same as that In tho
tenement house tobacco case.
In 1893 the legislature of this state passed
a statute that women should not work in fac
tories between the hours of 9 at night and C in
the morningr This statute was intended to
protect the health of women, and hence of their
offspring. Surely, said tho great majority of
intelligent people, it is enough that women work
In factories between the hours of 6 in the morn
ing and 9 at night. They therefore had the
statute passed that they should not work in
factories between 9 at night and 6 in tho morn
ing. It is almost inconceivable that the gentle
men thon 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 by tho constitu
tion, to work In factories all night and as many
hours as they saw fit. But they waxed eloquent
over the iniquity of the statute in its attempt
to Interfere with tho property and liberty of
women without due process of law their
property in their work and wages, and their
liberty to work all night, if they saw fit.
It is not at all to bo wondered at that such
decisions should provoke a widespread dissatis
faction with tho courts. Tho just feeling per
vading 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 com
munity. That Is a matter of ealightoned opinion
which the courts havo no right to arrogato unto
thomsolvoa. The court of England do not do
it, nor do tho courts of any othor country, oxcopt
ours. And ours baso Uio right to do so on funda
mental or constitutional provisional for the
safety of liberty and proporty, which aro not
peculiar to this country nt all, but aro to bo
found in all uystomu of government and Juris
prudence. No hucIi moaning was ovor glvon to
those safeguards of proporty and liberty until
by tho judges in this country. It is judgo-mada
law, pure and simple
I have given instances enough to expross my
meaning. I might also refer to tho decisions of
our court of nppcals declaring ntatutos void
which provided that employees on stato oi
municipal works undor contracts should not bo
paid loss than tho prevailing rate of wages, nor
required to work moro than a cortaln number
of hours a day. Theso decisions wont to suoh.
lengths that finally that court Itself was unablo
to reconcile, or ovon oxplaln them, and tho
learned judges foil to ridiculing and bantorlnf
one another for tho oxtrcmes tholr uttorancoi.
had roachod (Seo Pooplo ox rol. Cosooy v. Grout,
179 New York Reports at pago 417). I do not
need to go Into theBO decisions furthor, for they
so exasperated tho peoplo of this state that tho:
swept them all out of existence "rocallod"
them, If you will by a constitutional amond
mont In 1905 (dco Sec. 1 of Art. 12 of our stato
constitution.) Somo aspirants for tho office of
prosldont are just now talking about tho "re
call" of judicial decisions as though It woro a
now idea. It is not now at all. Wo havo boon
doing It for a long time, and wo Bhnll havo to
do a good deal moro of It boforo wo got through.
Wo do it vory easily In this stato, because our
constitution Itself requires that wo hnvo a now
constitutional convention ovory twenty yoars;
and meantime we frequently pass constitutional
amendments. It were woll If tho constitution
of the Unitod States woro amondod by tho addi
tion of a provision requiring it to ho recon
sidered by a constitutional convention ovory
twenty yoars, tho same as In this state, and in
many if not most of our states. A constitution
must grow and change, like everything else, but
the moro gradual tho bettor. As Macaulay say
of tho British constitution, "Although the
changes havo boon groat, thoro novor was an
instant of time in which tho major part of It
was not old." That is tho way to amend con
stitutions and laws gradually and prudontly.
But tho class of decisions which I havo men
tioned never had any Justification undor tho con
stitution, and It is annoying to havo to keep on
amending tho constitution to nullify thorn.
And now lot mo mention tho decision of tho
court of appeals of this stato last year which
overthrow tho employers' liability statuto passed
by our legislature tho year boforo. Tho rule
of the common law Is that tho law casts upon all
employes tho nocessary or Inherent risks of tho
work or business In which thoy are omployod.
Somo opinions of Judges clumsily say that tho
employee "assumes" those risks. Ho does n'o
such thing. He Is not consulted about it at all.
Tho common law casts such risks upon him.
This statuto changed tho common law rulo in
eight enumerated "especially dangerous" em
ployments, to- use tho words of the statute;
namely, it enacted that the said risks should bo
taken off tho employee and put upon tho em
ployer. The legislature thought it had a per
fect right to do this, and was so advised by
the ablest advisers. Indeed, did wo not all
think that tho legislature had tho right to do
away with or change any common law rule aa
it might seo fit? The courts, Including the
highest court In tho land, havo often decided
that no one has any property right In any rulo
of tho common law, and that such rule may be
taken or changed at the will of the legislature.
But our court of appeals declared this statute
"unconstitutional" the samo old word (Ives
v. South Buffalo Railway Co., 201 New York
Reports, page 271). Again it planted itself on
the constitutional prohibition against taking the
property or liberty of the individual without duo
process of law. Tho statute required that em
ployers should pay for deaths or injuries re
ceived from such necessary or inherent Tisks,
unless such injuries should be received through
the "serious and wilful misconduct of the work
man." The learned judges, with great profes
sions of reluctance, said that to thus shift tho
necessary and inherent risks from the work
man to the employer, and make the employer
pay the damages caused thereby, unless the
employee was guilty of "serious and wilful mis
(Continued on Page 10.)
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