MAY 17,- 1912
The Commoner.
7
Do Our Courts Stand in the Way of
Social and Economic Progress?
William J. Gaynor, mayor of the city of New
York, and frequently mentioned by progressive
domocrats in connection -with the democratio
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 addreBs 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 the 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 x 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. SometimeB, 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 he
saw fit. The claim that the manufacture of to
bacco in such places was detrimental to health,
especially to the health of children, and might
therefore be prohibited by the 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 we 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 ofra man's property i. e., of his chair, of
his cow, of his lot or the direct restraining of
his physical liberty. Nor did it occur to our
forefathers when they took it from England
and incorporated it into those fundamental in
struments of government in this country, Btate
and national, which we call constitutions, that
any meaning would ever bo given to it except
that which it then had. It h.ad then only a
direct meaning in respect of the taking of a
man's property or the depriving him of his
liberty. Moreover, it was a check on the execu
tive branch of government only in England, and
not on the legislative, and it was put into our
constitutions jn that sense. No one anticipated
that it would ever be interpreted as a check on
legislative power also, although that intcrpre
taion has naturally followed from our system
of government. But the carrying of it to ex
tremes by casuistry is another thing. This
tobacco case, in which the court showed so
much sensitiveness for the rights of property
and liberty, and so little for physical, mental
and moral health, was the final and full out
come of a course of constitutional exegesis
which had set in in this country not many years
before, and had for its object to embrace in the
said constitutional guaranty every legislative
enactment which by its operation might in
directly or remotely restrict the use of property
or liberty in its widest sense. Its development
was rapid, and finally reached that point which
has enabled the courts to stand in the way of
measures for the public happiness, welfare,
morals and progress, which are grown common
all over the world, and finally become expressed
in statute law here.
Some years later similar good and intelli
gent influences brought about the enactment of
a statute in the legislature of this state for
the sanitary regulation of underground bak
eries, for the sake of the health of those em
ployed in them and of the community generally.
The statute recognized the hot and uncomfort
able conditions of these bakeries 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 the like, and also that employees
therein should not work more than ten hours
a day, the work being principally done in the
night time. The supreme court of the United
States declared this ten hour requirement to be
unconstitutional, as depriving workmen, with
out due process of law, of the "liberty" to work
as long hours as they saw fit in underground
bakeries (Lochner v. New York, 198 United
States Reports, page 45). The learned court
stood 5 to 4. That division certainly showed
that Jthe 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 the like
by a vote of 5 to 4. What is 5 to 4 but a state
of doubt in the court? The reasoning in this
decision is substantially the same as that in the
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 morning. This statute was intended to
protect the health of women, and hence of their
offspring. Surely, said the 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 the morn
ing. It is almost inconceivable that the gentle
men 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 by the 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 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, if they saw fit.
It is not at all to bo wondered at that such
decisions should provoke a widespread dissatis
faction with the courts. The 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 enlightened opinion
which the courts have no right to arrogate unto
themselves. Tho courts of England do not do
it, nor do tho courts of any othor country, oxcopt
ours. And ours base the right to do so on funda
mental or constitutional provisions for the
safoty of liberty and property, which aro not
peculiar to this country at all, but aro to bo
found In all systems of government and juris
prudence. No such moaning was over given to
these safeguards of property and liberty until
by tho judges in this country. It Is judge-made
law, pure and simple.
I have given instances enough to exproBS my
meaning. I might also refer to the decisions of
our court of appeals declaring' otatutos void
which provided that employees on state oi
municipal works under contracts should not bo
paid less than tho prevailing rate of wages, nor
required to work moro than a certain number
of hours a day. Theso decisions went to such
lengths that finally that court Itself was unablo
to reconcile, or oven explain them, and tho
learned judgeB foil to ridiculing and bantorln
one another for the extremes their utterance,
had reached (See People ex rel. Cossoy v. Grout,
179 New York ItoportB at page 417). I do not
need to go into these decisions further, for they
so exasperated tho people of this state that tho;
swept them all out of existence "recalled"
them, If you will by a constitutional amend
ment in 1905 (dee Sec. 1 of Art. 12 of our state
constitution.) Some aspirants for the office of
president are just now talking about tho "re
call" of judicial decisions as though It were a
now Idea. It is not new at all. We have boon
doing it for a long time, and we shall have to
do a good deal more of It before we get through.
We do it very easily in this state, because our
constitution itself requires that we have a now
constitutional convention every twenty years;
and meantime we frequently pass constitutional
amendments. It were well if the constitution
of the United States were amended by the addi
tion of a provision requiring it to bo recon
sidered by a constitutional convention every
twenty years, 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 more gradual tho bettor. As Macaulay says
of the British constitution, "Although the
changes have been great, there never was an
instant of time in which the major part of It
was not old." That Is the way to amend con
stitutions and laws gradually and prudently.
But the class of decisions which I have men
tioned never had any justification under the con
stitution, and it is annoying to have to keep on
amending the constitution to nullify them.
And now let me mention the decision of the
court of appeals, of this state last year which
overthrew the employers' liability statute passed
by our legislature the year before. Tho rule
of the common law Is that the law casts upon all
employes the necessary or inherent risks of tho
work or business in wnich they are employed.
Some opinions of judges clumsily say that tho
employee "assumes" these risks. He does no
such thing. He is not consulted about it at all.
The common law casts such risks upon him.
This statute changed the common law rule in
eight enumerated "especially dangerous" em
ployments, to- use tho words of the statute;
namely, It enacted that the said risks should be
taken off the 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 we not all
think that tho legislature had tho right to do
away with or change any common law rule aa
it might see fit? The courts, Including tho
highest court in tho land, have often decided
that no one has any property right in any rule
of tho common law, and that such rule may bo
taken or changed at tho will of the legislature.
But our court of appeals declared this statute
"unconstitutional" the same old word (Ives
v. South Buffalo Railway Co., 201 New York
Reports, page 271). Again it planted itself on
tho constitutional prohibition against taking tho
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 risks,
unless such injuries should bo received through
the "serious and wilful misconduct of the work
man." Tho 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 tho damages caused thereby, unless tho
employee was guilty of "serious and wilful mis
(Continued on Page 10.)
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