fractions of the Federal Constitution than the Supreme Court itself. The New York Court of Appeals, for example, nullified, under the Fourteenth Amendment, the Eight-hour Law on Public Works (People v. Orange County Construction Co., 175 N. Y. 84). No further appeal remained for those interested in sustaining the validity of this law. Shortly after this, however, the United States Supreme Court in a case involving a similar statute (Atkins v. Kansas, 191 U. S. 207) held that its constitutionality was beyond all question. Not infrequently when the Federal question is thus removed, State Constitutions are amended to permit legislation for which there is strong popular demand. In Colorado, before the decision of the United States Supreme Court in Holden v. Hardy, sustaining the Eight-hour Law for miners, the State Court had advised the Legislature that a proposed law of the same order would be unconstitutional under the Fourteenth Amendment as well as under the State Constitution (In re Eight Hour Bill, 21 Col. 29). Thereafter when the Supreme Court had disposed of the Federal question in Holden v. Hardy, the Legislature enacted a similar law which the Colorado Courts held to be unconstitutional, but solely under the State Constitution. (In re Morgan, 26 Col. 415.) Thereafter (as in New York, after the decision of Atkins v. Kansas), the Constitution of the State was amended to permit the legislation desired by the people.

In Illinois, a decision (Ritchie v. People, 155 Ill. 98) declares unconstitutional a law prohibiting more than eight hours a day, or forty-eight hours a week for the labor of women in factories. Its reasoning is based on the Fourteenth amendment and upon the State Constitution. The decision is generally regarded by writers on the police power, as erroneous so far as the Fourteenth Amendment is concerned, and dicta in subsequent decisions of the United States Supreme Court leave little doubt that the Federal question would have been otherwise decided by that Court, but, with the decision of the Illinois Court placed squarely on the Federal Constitution, it is obviously a fruitless. task for those interested in the protection of women in industry to attempt to change the Illinois Constitution.

The only recent decision of the United States Supreme Court

on legislation of the character herein considered, in which the Act in question was found to be unconstitutional is Lochner v. New York (198 U. S. 45), involving the law limiting the hours of labor in bakeries to sixty per week or ten hours a day. This decision was concurred in by a bare majority of the Court and is narrow in its scope. The Court refuses to consider the Act as one passed for the health of bakers. In construes the law as one "the real object and purpose of which was to regulate the hours of labor between master and employes (all being men -sui juris) in a private business, not dangerous in any degree to morals or in any real or substantial degree to the health of the employe. Under these circumstances," it says, "the freedom of the master and servant to contract with each other in relation to their employment and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution." It must be admitted, that, if followed in subsequent decisions, the authority assumed in this case over the exercise of the police power by the State Legislatures will tend very materially to diminish the powers of Legislatures to make laws for conditions within their borders requiring, in their judgment, industrial legislation. If I may venture a personal opinion, it is that the decision is a reactionary one, which will not be enlarged beyond its immediate facts, in subsequent rulings. The facts themselves which the Courts finds as a basis for its decision, regarding the general healthfulness of the baker's occupation, are themselves contrary to the conclusions of modern investigators who have found the occupation to be one of unusual unhealthfulness and of extraordinary mortality.

The United States Supreme Court has usually, in reviewing exercises by the State Legislature of the police power, been influenced by a reflection well expressed by Justice Harlan in Atkin v. Kansas (191 U. S. 207, at p. 223), where he says:

"No evils arising from such legislation could be more far-reaching than those which might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation and upon grounds merely of justice and reason, or wisdom, annul statutes that had received the sanction of the people's representatives."

The extent to which the police power of the State shall ex

pand to meet economic and social conditions, depends, of course, largely upon the attitude of the judiciary. The judicial policy, as expressed in the Courts, has ordinarily been against fixing upon the police power rigid rules. As the Supreme Court of Nebraska has said, in a decision sustaining an act limiting the hours of women in mercantile establishments (Wenham v. State, 65 Neb. 394 [1902]):

"We are unable to find a case where the Courts have laid down any rigid rule for the exercise of the police power. There is little reason, under our system of government, for placing a narrow interpretation on this power, restricting its scope so as to hamper the Legislature in dealing with the varying necessities of society and new circumstances as they arise, calling for legislative intervention in the public interest. The moment the police power is disturbed or curbed by fixed or rigid rules, a danger will be introduced into our system which will be far greater than the results arising from an occasional mistake by legislative bodies in exercising such power.'

There is little danger that the intervention of the State in industry would, under a broad construction of the police power by the Courts, be too frequent; that individual initiative would be cramped by unnecessary and unreasonable restraints, that handicaps would be placed upon legitimate competition, by this type of legislation. Our Legislatures, for example, have almost uniformly listened, with strained attention, to the representatives of great business interest, even when they have opposed the most reasonable limitations on their powers, the most righteous extensions of their duties and liabilities. We are to-day, for example, behind all other great civilized countries of the world, in the protection which our law affords the safety of employes. Such protective laws as have been upheld, as to their constitutionality, have been almost invariably strictly construed by the Courts, against the purposes of the Legislature. Take a single illustration. In 1847 England adopted as a part of her factory act a provision requiring guards to be placed upon dangerous machinery. It has enforced that law. Forty years later New York adopted substantially the same statute. Her Courts, however, have practically nullified it. (Compare Knisley v. Pratt, 147 N. Y. 372, with Baddesley v. Lord Granville, 19 Q. B. D. 423; Simpson v. N. Y. Rubber Co., 80 Hun 418, with de Young

v. Irving, 5 A. D. 449.) Our law, as regards responsibility of employers for industrial accidents, is generally regarded by the learned text-book writers as unjust in important particulars and unsuited to our time. Yet how slowly, how unwillingly have the Legislatures increased the responsibilities of employers; how few States have abolished the fellow-servant doctrine or changed the rule of assumed risk. half a million people in industrial employments in the United States every year. (See North American Review of November 16, 1906, "Our Industrial Juggernaut.") Our own Commissioner of Labor some years ago estimated that in this State we annually cripple, kill or injure 40,000 individuals in our industrial establishments. Yet we have made but rudimentary changes in the law. The Employers' Liability Act, adopted in New York in 1902, was not more advanced in its principles than that which England adopted in 1880 and had abandoned as inadequate, five years before the New York act was made law. Yet this statute took seven years to obtain its passage from the New York Legislature. The Federal Employers' Liability Act of 1905, the most far-reaching American law on the liability of railroads to their employes, enacted after years of agitation, and now under a temporary eclipse as to its constitutionality, is not more favorable to those employes than the law of Prussia was in 1838.

We kill or injure, we are told, over

The danger from the increase of the police power is not great. The danger from judicial construction of that power, which shall stop its expansion is more serious. Our social order has many enemies, enemies who find arguments for presaging its disintegration and decay, in the enormous concentration of wealth, in the growth of the great corporations, in the financial dishonesty which has been so recently exposed in high places, and in the misery and wretchedness of thousands whose lives are exploited in industry. But such arguments, with all the exaggerations and falsehoods which may be added to them by a sensational press, while they may inflame the blood of discontent, will never carry general conviction, until the Courts have first convinced the people that, in the presence of social and industrial wrong, the State is powerless to meet conditions, which demand law; until the Courts have convinced the people that, bound and

fettered by an inflexible written Constitution framed over a century ago, the State cannot exercise functions, which the present needs of society require it to exercise.

These decisions of the Courts which the socialist looks for with eager expectancy-declarations of the paralysis of the State, of its inability to deal with economic problems by law— are, however, few and far between. Reactionary judges there may be, at times, who refuse to be our contemporaries, who look only to the past, to judge of the needs of the present-yet slowly but surely, as public opinion matures, the power of the State is expanding to protect as well as to punish, in a land wherein the recognized rights of the individual, include not only liberty, but life and a fair field for the pursuit of happiness.

GEORGE W. ALGER.