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THE GREEN BAG
fairly applicable to conditions with which the public at large can have no real famil iarity? Has not the progress of sanitary science shown that common understanding is often equivalent to popular ignorance and fallacy? And if common understanding is to be turned into judicial notice, is there any other case of judicial notice with regard to which respectable judicial opinion is evenly divided? Moreover, what is it that common know ledge predicates in this case? not that the occupation is not in a special degree un sanitary — that is conceded; not that a re duction of hours would not tend to reduce the risk of injury to health — that, likewise, can not be fairly denied; but merely that the danger of the excessive work and the benefit of its reduction is not sufficient to warrant the interference with the liberty of contract. There is a constitutional right which is not absolute, but subject to limita tion; it may be limited if the resulting gain warrants it, but the gain in this case is not considered sufficient. The court says, "This is not a question of substituting the judgment of the court for that of the legislature"; it thereby seems to admit that if it were, the court should yield its judgment to that of the legislature. But there is really no escape from the con clusion that this is an issue of judgment. It is either that, or an issue of common sense, or of good faith. The dissent is based on the ground that there was an issue of judg ment, and the New York courts had ap proved of the judgment of the legislature. And because it is believed that the choice between the comparative benefits of the public welfare and private liberty of action has, by the constitution, been committed to the legislature, it must also be believed that Lochner v. New York has been wrongly decided. V If the decision must be accepted as law, it becomes important to determine its value as an authority for future cases and as a
guide to legislation. Where is the dividing line that will serve to distinguish Holden v. Hardy from Lochner v. New York? Is a limitation of hours of labor valid if applied to women? Is the decision of the Massa chusetts Court in the case of the Hamilton Mfg. Co., which has stood for nearly thirty years, and which was recently followed in Nebraska, law to-day or not? No one can answer these questions. But it will be remembered that the Su preme Court has not proclaimed an abso lute right to contract for unlimited hours of labor under unsanitary conditions or to the prejudice of the health of the employee. It may be surmised that the existing statu tory limitations of hours in cotton and woolen factories and in brickyards, can not stand, but with regard to every new em ployment brought under statutory restric tion, the Supreme Court will have to exercise its judgment anew, and every other court will enjoy the like privilege. It may even be that a future court will allow itself to be convinced that the conditions in the bakers' trade are sufficiently unsanitary to justify a restriction of hours of employment; it may be remembered that the Supreme Court has been willing to receive new light as to the danger of infection from Texas cattle (compare 95 U. S. 465 with 129 U. S. 217), and as to the character of oleomar garine as an article of food (Compare 127 U. S. 678 with 171 U. S. i). Under these circumstances it need hardly be apprehended that the decision will be an obstacle to the progress of sanitary legisla tion. Perhaps it will be hailed by many as a salutary check to hasty, ill-advised, and meddlesome legislation. It can hardly be denied that there is a growing sentiment in this country that unwise legislation should be treated by the courts as unconstitutional; such a practice would heretofore have been regarded as contrary to established prin ciples, but the present decision has cer tainly given it a powerful sanction. There is, of course, a gain in the defeat of bad
