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A PROPOSED CONSTITUTIONAL AMENDMENT THE pending constitutional amend ment in New York State relating to employers' liability and workmen's compensation, while not exemplifying the evil of the recall of judicial decisions in its worst aspect, is plainly an attempt to set the courts right on the exercise and interpretation of the police power and to overcome the reactionary judical attitude apparent in the Ives case. The proposed amendment (Senate Bill No. 118, Assembly Bill No. 409) is as follows: — Section 19. Nothing contained in this con stitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise, either directly or through a state or other system of insurance or otherwise, of compensation for injuries to employees or for death of employees resulting from such injuries without regard to fault as a cause thereof, except where the injury is occasioned by the wilful intention of the in jured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty; or for the ad justment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation; or to provide that the right of such compensation and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable sum; provided that all moneys paid by an employer to his employees or their legal representatives, by reason of the enactment of any of the laws herein authorized shall be held to be a proper
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charge in the cost of operating the business of the employer. The elective workmen's compensation act which was set aside in the Ives decision is widely recognized not to have been free from defects, but the Court of Appeals could have declared it unconstitutional as class legislation, without basing its finding on ultra-con servative interpretations of the scope of the police power and the meaning of the guaranty against the taking of property without due process of law. If courts are disposed to take a reactionary view of the meaning of the constitution, it is but a natural remedy to amend it, so that it will clearly express the wider meanings desired and make narrow construction impossible. A constitu tional amendment of that kind will incidently operate as the recall of a judicial decision, but is something more than that, and it is this broader purpose of clarifying the constitution, rather than merely of overturning a judicial decision, which dignifies such an amend ment and renders it legitimate. If on the other hand the amendment is adopted not as a piece of well-considered con stitutional legislation, but substantially as a re-enactment of the defeated statute in constitutional form, it illus trates all those evils which we commonly associate with the proposed recall of decisions. It is bound to reflect the effort to meet some special and tem porary exigency, rather than the pur pose of strengthening the permanent foundations of law, and to result in burdening the constitution with matters properly statutory and in bringing con fusion and disorder into the laws by the piecemeal mode of procedure employed. When such a decision as that in the Ives case is pronounced, the primary need is to elucidate the constitution so that there can in future be no mistake
