many remedial acts. In construing an act with the constitution a court is confronted with a problem other than that which would be presented by a comparison of two contracts or even two statutes; there must be more than academic divergence or literal conflict before the act can be held void. "It (the court) can only disregard the act when those who have the right to make laws have not merely made a mistake, but have made a very clear one so clear that it is not open to rational question." * But tested even by this broad standard do the criticised cases afford even a plausible pretext for a radical change in our institutions?

Noting in passing the anomaly presented by one who proclaims himself in favor of pure democracy but urges the recall of decisions of courts elected for comparatively short terms, while leaving inviolate the conclusions of a tribunal whose members are appointed for life, consider the decisions complained of.

In the so-called "Tenement House" case, the act under consideration forbade the manufacture of cigars or the preparation of tobacco in any form in a tenement house situated in a city of more than 500,000 inhabitants, and defined a tenement house as a building in which more than three families had separate apartments where they did their cooking. In the case under consideration the defendant lived with his wife and two children in an apartment of seven rooms in a building in which there were three other apartments of equal size. Under the act it would have been an offence for a gentleman occupying an apartment on Riverside Drive to roll a cigarette or mix a bowl of pipe tobacco. One would think that criticism of the lack of skill in drafting the bill would be more pertinent than taxing the court which declared it unconstitutional with being out of touch with life and more in sympathy with property than humanity.

Of the "Bake-shop" decision,‡ so much decried, the only significant feature is that the statute was sustained by the State court whose decisions would be subject to recall and declared

*7 Harv. L. Rev. 129. Origin and Scope of the American Doctrine of Constitutional Law. Prof. J. B. Thayer.

† In re Jacobs, 98 N. Y., 98.

People v. Lochner, 177 N. Y., 145; 69 N. E., 373; Lochner v. New York, 198 U. S., 45.

void by the Federal court which is to remain beyond the reach of review.

In the Carnegie Hall speech the Ives case,* in which the New York Employers' Liability Act was held unconstitutional, received especial condemnation. The speaker asserted that similar laws have been held constitutional by the Supreme Court of the nation and several courts in various States. This assertion will bear analysis. The New York act was not elective, that is, it did not give the employer an election whether or not to be governed thereby. It applied to certain occupations declared to be especially dangerous, and, roughly stated, provided that if a workman suffered injury caused by the necessary risk or danger of the employment or negligence, the employer should compensate the injured employee according to a fixed schedule. The act retained to the workman his common law rights of suit unless he availed himself of the act.

In general, law recognizes only two classes of rights as between individuals, those arising from contract (ex contractu) and those arising from a breach of duty imposed by law (ex delicto). This act imposed no new duty for the breach of which a remedy was given. The question presented to the court was whether it was competent for the legislature to compel A. to pay money to B. when A. was not under contractual obligation to B. to pay such money, and had violated no duty imposed by law. Conceding the broadest powers to the legislature and recognizing the extreme delicacy of the power of the court to review, the most ardent humanitarian on the bench must needs have some hesitancy in declaring that because of some supposed or real benefit to the community at large, one man or one class of men may be compelled to contribute directly to the support of another man or another class of men to whom no contractual or tortious relationship is sustained. The Court of Appeals of New York in a long and able opinion arrived at the conclusion that this may not be.

It is not true that similar laws have been before either the Federal Supreme Court or courts of several States. The Employers' Liability Law † passed on by the Supreme Court of the

* Ives v. South Buffalo Ry. Co., 201 N. Y., 271; 94 N. E., 431. Second Employers' Liability Cases, 223 U. S., 1 (Feb. 15, 1912).

United States did not purport to impose any such liability. It merely took away some of the common law defences, but still left the employer liable only in the case of negligence. The principal question passed on by the Federal court was whether the act was a proper exercise of the constitutional power to regulate interstate commerce. The constitutionality of an attempt to impose liability without breach of either contract or duty was not decided; it was not even presented for consideration.

Employers' Liability laws have been before the Supreme Courts of Washington,* Wisconsin † and Ohio, and the Justices of Massachusetts § have rendered an opinion to the legislature on the proposed act of that State. Only the Washington act can, by any stretch of the imagination, be said to be similar in principle to the New York act, and it is sufficiently dissimilar so that the same court might easily sustain the one while refusing to countenance the other. Under the Washington act employers are compelled to contribute to a State Insurance Fund, the amount of their contributions being based upon their pay-rolls. The right of the employee against the employer is taken away, and in lieu thereof he is allowed compensation by the State out of the Insurance Fund.

The Ohio act compels nothing, but merely permits the employer to contribute to the State Insurance Fund, in which event he is exempt from suit. If he does not contribute the three defences of contributory negligence, fellow servant and assumption of risk are barred.

The Massachusetts, Wisconsin and Illinois acts are similar in principle, imposing no liability upon the employer other than that now recognized by law, but depriving him of the three defences unless he elects to come under the act.

The radical difference in principle between the New York act and all the other acts, with the possible exception of that of Washington, is obvious, as is also the lamentable inaccuracy of calling these acts similar for the purpose of justifying criticism of the New York court.

* State ex rel. Clausen (Wash.) 117 Pac. R., 1101.

† Borgnis v. Falk Co. (Wisc.) 133 N. W., 209.

State v. Creamer (Ohio), 97 N. E., 602 (Feb. 6, 1912).

§ Opinion of Justices (Mass.), 96 N. E., 308 (June 24, 1911).

Is there not now raised a doubt concerning the wisdom of the Recall of Decisions when we have so recent evidence of the influence over the voter of one who is so inexact in his thought or language? He maintains that a decision holding an Act of Congress a proper exercise of the powers conferred by the Commerce Clause is in conflict with a decision holding void an act of the legislature directing an employer to support an employee who has been injured without the employer's fault. If the people are to decide questions of fundamental law under the guidance of such arguments, may we not anticipate confusion if nothing worse in our principles of government?

The Carnegie Hall speech raises still a further doubt. The argument is this: Mr. Justice Holmes in his opinion in the Oklahoma bank case said (arguendo): "The police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare," Therefore, whenever the people shall have approved an act after it is held unconstitutional, it is conclusive evidence that it is "held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." And therefore, the act is within the police power and constitutional, notwithstanding it may deprive men of liberty or of property, impair the obligations of contract, or infringe any of the other rights guaranteed under the Federal or State constitutions.

What intelligence in ruling on a question of constitutional law is to be expected from the electorate when so distinguished an advocate makes such use of a general expression out of its context? Lawyers know the terse, vigorous and epigrammatic style of Justice Holmes. His English is vigorous just because he leaves out qualifications that may be inferred. An epigram might be defined to be succinct truth when uttered, a diffused lie when quoted. But the distinguished gentleman is without even the excuse of the ordinary layman who mistakes dictum for decision, because Justice Holmes, when considering a petition for re-hearing in which counsel put upon this expression the same construction which is relied upon in the Carnegie

Hall speech, replied: "The analysis of the police power, whether correct or not, was intended to indicate an interpretation of what has taken place in the past, not to give a new or wider scope to the power. The propositions with regard to it, however, in any form are rather in the nature of preliminaries. For in this case there is no out and out unconditional taking at all."* Needless to say this has not been quoted.

The argument, based upon Justice Holmes' dictum, is that the people have the final determination of that which "is held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." And when the people have determined that a certain measure falls within that definition, it is an exercise of the police power and so beyond all constitutional inhibitions. The logical result is that all constitutional limitations are gone and the government of any State adopting that theory would indeed be a pure democracy, subject only to such control as may be afforded by the Federal Constitution. This method of argument, if employed by a lawyer, would meet a well-deserved rebuke from any selfrespecting court. The doctrine of the Recall of Decisions is bad, but infinitely worse is the reasoning by which it is justified.

Those who doubt the expediency of the change are charged with the high crime of distrusting the people; but this retort proves too much, for Colonel Roosevelt himself is careful to limit his proposal to decisions of the State courts. Does he distrust the people when he declines to submit to their approval decisions of the Federal Supreme Court under the Fourteenth Amendment? Or are the people of the Union less to be trusted than those of any State?

It is true that changes more or less radical have come over social philosophy and that many of the economic and sociological views held forty or even twenty years ago are now disparaged by many of undoubted sincerity and learning. It may be that Spencer's Social Statics was not only not incorporated into the Federal Constitution by the Fourteenth Amendment, as said by Mr. Justice Holmes, but that the philosophy of that work was wholly unsound and political institutions, inspired by its teachings,

*219 U. S., 580.