2O
THE GREEN BAG
the truth, exact ascertainment of the facts, and strict justice. When everybody may learn all the facts in ten minutes from the morning paper, why should it take a court six months to reach a fragment of them? But in large part this dissatisfac tion has a real basis, and is well founded. No amount of admiration for our traditional system should blind us to the obvious fact that it exhibits too great a respect for the individual, and for the intrenched position in which our legal and political history has put him and too little respect for the needs of society, when they come in conflict with the individual, to be in touch with the present age. A glance at one of the digests will show us where the courts find them selves . to-day. Take the one subheading under Constitutional Law, "interference with the right of free contract," and notice the decisions. Three of them hold eight hour laws unconstitutional; ' two more hold statutes limiting the hours of labor uncon stitutional; 2 four deny effect to statutes fix ing the periods at which certain classes of laborers shall receive their wages;3 another passes adversely on a statute prohibiting the practice of fines in cotton mills; 4 another deals in the same way with a statute pro hibiting corporations from deducting from the wages of employees to establish hospital and relief funds;5 three overturn acts regu lating the measuring of coal for the purpose of fixing the compensation of miners;8 two hold void statutes designed to prevent the 1 Ex parte Karbach, 85 Cal. 274; Low v. Rees Printing Co., 41 Neb. 127; In re Eight Hour Law, 21 Col. 29. 1 Fiske v. People, 188 Ill. 206; Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197. ' Godcharles v. Wigeman, 113 Pa. St. 431; Frober v. People, 141 Ill. 171; Leep v. St. Louis I. M. & S. R. Co., 58 Ark. 407; Republic Iron and Steel Co. v. State, 160 Ind. 379. 4 Com. v. Perry, 155 Mass. 117. 8 Kellyville Coal Co. v. Harrier, 207 Ill. 624. 6 Millett v. People, 117 Ill. 294; In re House Bill No. 203, 21 Col. 27; In re Preston, 63 Ohio St. 428.
payment of employees in store orders; * an other passes adversely on an act requiring laborers on public contracts to be paid the prevailing rate of wages; 2 another denies effect to an act requiring railway corpora tions to furnish discharged employees a statement of the causes of their removal; * while another decides it unconstitutional to prevent employers from prohibiting their employees from joining unions or from re taining membership in unions to which they belong.4 I do not criticize these decisions. As the law stands, I do not doubt they were rightly determined. But they serve to show that the right of the individual to contract as he pleases is upheld by our legal system at the expense of the right of society to stand between a portion of our population and oppression. This right of the individ ual and this exaggerated respect for his right are common-law doctrines. And this means that a struggle is in progress between society and the common law; for the judicial power over unconstitutional legislation is in the right line of common-law ideas. It is a plain consequence of the doctrine of the supremacy of law, and has developed from a line of precedents that run back to Magna Charta.5 Men have changed their views as to the relative importance of the individual and of society; but the common law has not changed. Indeed, the common law knows individuals only. In the seventeenth and eighteenth centuries, when the theory of the state of nature was dominant, this fea ture of our legal system made it popular. But to-day the isolated individual is no longer taken for the center of the universe. We see now that he is an abstraction, and has never had a concrete existence. To 1 State v. Goodwill, 33 W. Va. 179; State v. Fire Creek Coal & Coke Co., 33 W. Va. 188. 2 People v. Coles, 166 N. Y. i. ' Wallace v. Georgia C. & N. R. Co., 94 Ga. 732. 4 State v. Julow, 129 Mo. 163. 6 Articula super Chartas, 21 Edw. I, Cap. 2; Anonymous, Y. B. u Edw. 3, No. 23; Reginald de Nerford's Case, Y. B. Hil. 12 Edw. 3, No. 34.
