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THE ATLANTIAN
9
WORKMEN’S COMPENSA
TION AND THE COURTS.
Tlie swelling cliorus of condemnation
of the decision of the New York Court
of Appeals on the workmen's compensa
tion act is re-enforced l>y a loud blast
from Oyster Bay. Mr. Roosevelt reas
serts his contention that it is not merely
the right but the duty of every friend
of genuine justice and progress to pro
test against a decision of this kind. The
utility of this volume of protest rests in
the fact that it is bringing together a
body of public opinion which must in
fluence the courts in future cases. If the
New York courts had in the recent case
given due weight to social and ethical
considerations it would have rendered a
different decision. The vigorous criticism
which its finding has called forth may
help the courts to appreciate the mistake
of emphasis or viewpoint, and to con
sider similar questions hereafter less ex
clusively with reference to legal and tech
nical issues. The United States Su
preme Court has explicitly recognized the
propriety on the part of the courts of
taking cognizance of matters of public
opinion. It is reasonable, therefore, to
expect that the expression of public opin
ion with respect to the New York case
may have a wholesome influence on the
attitude of the courts.
It seems clear, also, that, unless the
courts take a loose constructionist view
of the constitution in questions of labor
legislation, they will seriously imperil the
system of written constitutions itself.
By holding to a strict constructionist
interpretation of the Constitution the
courts arc imposing intolerable restraints
upon the powers of American legislatures
to deal with the new problems of indus
trial society, such as women’s employ
ment and workmen’s insurance. The peo
ple will not long permit the judicial
branch of the government to override the
legislative department, nullify measures
designed to correct industrial evils, and
prevent the adaptation of statute law to
the requirements of social change. This
issue is sharply stated by an “eminent
jurist” whom Mr. Roosevelt quotes
anonymously in his article in the Out
look.
“The New York court, admitting that
the existing law is cruelly unjust, still
says that the remedy which all the rest
of the civilized world has found to bo
best is unavailable to the American peo
ple without an amendment of the Consti
tution. That is a fair example of the
uses which have been made of American
constitutions. I have made a careful
study of constitutional decisions since
1890, in the courts of New York, Illi
nois and California. As a rule, laws
which they have declared unconstitutional
were adopted to correct admitted indus
trial or social evils—such evils as every
other civilized country in the world has
been correcting by legislation. They
dealt with such subjects as sweat-shops,
hours of labor for women, ages at which
children could bo employed, conditions
of mines, the requirement that workmen
should be paid in cash or its equivalent,
etc. This study raises the question: Are
the American people less free than other
civilized people? Our constitutions were
intended to protect us against tyranny;
and there are now most frequently used
Another Un-American
We now have the parcel post, and undoubtedly, as
the system is perfected, will derive great profit from it
For over a year we have had postal savings banks, anc
they are proving their value every day. Both are “un
American” institutions, borrowed from Europe. For
that matter, our hats and trousers are un-American in
stitutions, borrowed from Europe.
Another un-American borrowing from Europe is
ahead of us. No other commercial country in the worlc
would tolerate our disjointed, headless banking system
which automatically breaks down every time a very se
vere strain is thrown upon it. In every other country
there is co-operation among the banks; there is headship
there is a concentrated banking reserve that—unlike our
scattered reserve—is serviceable in foul weather as wel
as in fair. To that we must come sooner or later; and the
Congress that establishes a sound banking system in the
United States, constructed in the light of the world’s ex
perience with banking, will have done more for the well
being of the mass of the people than any possible revision
of the tariff can accomplish. The tariff picks our pockets,
but it does not turn out in the streets hundreds of thou
sands of men tramping for work, as every panic—aggra
vated by an intolerably weak system of banking—does.
We hope that high honor will fall to the Sixty-thirc
Congress; but co-ordination of the banks, concentration
of banking power and governmental auspices are the key
notes. Unless the Sixty-third Congress is ready to accept
all three of these necessary reforms, we pray it will keep
its hands off the subject.—Ex.
One Railroad
The Delaware, Lackawanna & Western is merely a
railroad—not a system. It has never been re-organized,
consolidated, expanded or financed. It was built from the
proceeds of its capital stock and has no bonds. It trav
erses a rich territory, and is reasonably prosperous, pay
ing its stockholders ten per cent, a year in regular cash
dividends. In 1909 it gave them, in addition, an extra
cash dividend of fifty per cent., a stock dividend of fifteen
per cent., and a privilege to subscribe at par to some coal
stock, which later sold at two hundred dollars a share,
and now pays ten per cent, dividends. Including this
privilege, Lackawanna shareholders’ melon that year
amounted to about two hundred per cent.—or two dollars
for every dollar of par value of their stock. The next
year was comparatively lean, shareholders receiving only
twenty per cent, in cash dividends. In 1911 shareholders
received, in addition to the regular ten {)er cent., an extra
cash dividend of ten per cent., and a thirty-five per cent,
dividend in four per cent, guaranteed stock. In 1912
shareholders were given the privilege of subscribing at
par to forty per cent, of new stock, the right being equiv
alent to a dividend of one hundred and thirty-eight per
cent.—making altogether something like four hundred
per cent, in four years.
Of course, Lackawanna is quite exceptional among
Railroads—partly because it has been merely a railroad
rather than a subject for dazzling manipulation in Wall
Street.—Ex. - - -
to protect those who oppress women and
children and laborers. When society at
tempts to redress its wrongs, it is told
that its measures are unconstitutional.
The battle of society is not with wrong,
but with the constitution. In our legis
latures the debate is not about the wis
dom of measures, but their constitution
ality. Laws are often obscure and indi
rect, in order to “get round” the con
stitution. Every enemy of the common
good takes his stand on the Constitution
—and is safe. In my judgment, this is
an utter perversion of constitutions. It
is not the first time that institutions
which were devised to protect society
have been seized upon by a class and
made a fearful engine of oppression. It
will bo noted that these recent uses of
constitutions do not proceed from any
specific language in those instruments.
All the decisions are based upon such
general terms as “liberty” and “prop
erty,” and the inhibition is found, not
in the language of the Constitution, but
in the speculative definitions which the
courts have made of these general terms.
From these new definitions has sprung
our new constitutional law, under which
constitutions that were intended to pro
tect society against tyranny have be
come instruments to defeat every effort
of society to redress admitted wrongs.
Either American courts will make a dif
ferent use of constitutions, or constitu
tions will become so odious that they will
he thrown out of the back window. That
will bo a serious misfortune to the Unit
ed States. We need the steadying power
of written constitutions.
Similarly, Mr. Roosevelt concludes his
discussion with these words: “I feel
that it would be a very great misfortune
for us as a people to have to abandon
our system of written constitutions, and
of legislation under them subject to judi
cial interpretation. But decisions, such
as this of the Court of Appeals, involv
ing such far-reaching injustice and wrong
(and implying in our government such
contemptible futility from the standpoint
of remedying wrong and injustice), if
unchecked and uncorrectcd, will go a
long way toward convincing people that,
at whatever cost, the entire system must
lie changed. The so-called conservatives
who work for and applaud such decisions,
and deprecate criticism of them, are do
ing all in their power to make it neces
sary for the nation as a whole in these
matters to go to a far more radical ex
treme than the most radical State has as
yet even proposed to go.”
Meanwhile, in the Standard Oil de
cision, tho Supreme Court of the United
States has virtually usurped legislative
functions by interpolating into the Sher
man Act a limiting provision not found
in tho law itself. The New York Court
of Appeals and other State courts have
invaded tho legislative sphere to nullify
enactments that are clearly demanded to
correct industrial evils and to conform
the provisions of statute law to the re
quirements of the social order of today.
The Supreme Court of tho United States
has trenched upon the legislative pre
serves to reconstruct national legislation
in accordance with its view on “good”
nnd “bad” trusts. The usurpation in
each case is revolutionary and will hard
ly be tolerated as a permanent practice
on the part of the courts.