tute the courts more clearly a portion of the legislative machinery than at present, in as much as it would necessarily raise a presumption against the validity of a law until after the courts had held it to be constitutional.

It is in point to inquire as to the competence of the courts to exercise revisory power over legislation.' As Professor Pound has remarked:

> Courts are less and less competent to formulate rules for new relations which require regulation. They have the experience of the past. But they do not have the facts of the present. They have but one case before them, to be decided upon the principles of the past, the equities of the one situation, and the prejudices which the individualism of common-law institutional writers, the dogmas learned in a college course in economics and habitual association with the business and professional class must inevitably produce. It is a sound instinct in the community that objects to the settlement of questions of the highest social import in private litigations between John Doe and Richard Roe.'

Judges of our higher courts represent the training and opinions of the past and are not proper persons to determine questions of policy with reference to new industrial or social conditions. Whether or not it may be of importance, it is nevertheless true that courts exercise their power to declare laws invalid, where the laws are not clearly repugnant to the constitution, most frequently in cases under the police power involving the protec

statute is invalid would operate to discontinue proceedings pending under the act, and would entitle persons at the time imprisoned under the act to demand that they be released; but a person who has already served a term of imprisonment under the law would have little if any remedy.

It is beyond the scope of this paper to discuss the effect of judicial supervision upon the quality of the legislative product. It may be well to remark, however, that the legislatures are thus deprived of much of the small share of responsibility which has been left to them by the written constitutions of the states. It is also beyond the scope of this paper to discuss the effect of unwise and careless state legislation in producing the present attitude of the courts.

Roscoe Pound, "Common Law and Legislation ", Harvard Law Review, vol. xxi, p. 403. This article is an able criticism of the present attitude of the courts toward legislation.

The courts on this account

tion of the public or of laborers.' have given weight to popular criticism of the judicial branch of our government as unduly favorable to the so-called vested interests.

In the sixteenth and seventeenth centuries the judiciary stood between the public and the crown. It protected the individual from the state when he required that protection. Today, when it assumes to stand between the legislature and the public and thus again to protect the individual from the state, it really stands between the public and what the public needs and desires, and protects individuals who need no protection against society which does need it. Hence the side of the courts is no longer the popular side."

It has already been noted that state courts can and in many cases do exercise an absolute veto upon state statutes. This veto is usually interposed upon the ground that the statute under consideration is repugnant to the provisions of the state constitution. The states, however, have another legislative process superior to the enactment of statutes by the state legislatures, and may, if sufficient interest be manifested in the measure which the state courts have declared invalid, overrule these courts by placing the substance of the invalidated law in the state constitution, either by an amendment or in connection with a general revision. A tendency to overrule judicial decisions by constitutional alterations has been clearly apparent in recent years.3 Thus in 1899 the supreme court of Colorado, upon

1 Many courts have held labor legislation invalid on the specious argument that it deprives the laborers themselves of constitutional rights. See, for example, in Godcharles v. Wigeman, 113 Pa. St. 431, an eloquent defense of the laborer's rights of liberty and contract, while the court in its decision extends the phrase "right of contract" in such a manner as to declare unconstitutional legislation beneficial to laborers. The language of the Godcharles case was recently quoted with approval in State v. Missouri Tie and Timber Company, 181 Mo. 536. As to the attitude of the courts toward injured employees, see an article by William Hard in Everybody's, September, 1908. See also H. R. Seager in POLITICAL SCIENCE QUARTERLY, vol. xix, p. 589.

Roscoe Pound in Harvard Law Review, vol. xxi, p. 403.

"Attention should be called to the fact that this discussion relates simply to cases in which laws have been declared unconstitutional where their repugnance to the constitution is not clearly apparent. Many cases of course arise in which restrictions im

arguments that are at least questionable, held invalid as in violation of the constitution of that state a legislative act limiting a day's labor in mines and smelters to eight hours. In 1902 a constitutional amendment was adopted by the people of Colorado fixing eight hours as a working day in mines.' Montana in 1904 and Oklahoma in 1907 introduced into their constitutions provisions limiting a day's labor in mines to eight hours. A series of decisions by the New York Court of Appeals, beginning in 1901, held unconstitutional state statutes regulating hours and conditions of labor on state and municipal public works. An amendment to the constitution of New York, adopted in 1905, provides that the legislature shall have power to "regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed" by the state or any civil division thereof, or on public contracts. California in 1902, Montana in 1904 and Oklahoma in 1907 adopted constitutional provisions establishing an eight-hour day upon state and municipal public works. California, after three unsuccessful attempts of its legislature to enact a primary election law which would meet judicial approval, in 1899 adopted a constitutional amendment upon this subject in order to overcome difficulties raised by the court.3 Michigan in 1902 by constitutional amendment authorized its legislature to provide by law for indeterminate sentences, thus overcoming a decision of the supreme court of that state declaring such a law unconstitutional. New Hampshire

posed by one constitution are later deemed unwise and are removed either by amendment or constitutional revision, but such cases are not in point. No effort is made here to call into question the exercise of power by the courts where a statute is clearly repugnant to constitutional provisions.

1 In re Morgan, 26 Colo. 415. See also Ernst Freund, Police Power, sec. 155. 2 People v. Coler, 166 N. Y. 1; People v. Orange County Road Construction Company, 175 N. Y. 84; People v. Grout, 179 N. Y. 417. See also Cleveland v. Construction Company, 67 Ohio St. 197 (1902).

3 E. C. Meyer, Nominating systems, pp. 196, 354. Marsh v. Hanley, 111 Cal. 368; Spier v. Baker, 120 Cal. 370; Britton v. Board, 129 Cal. 337.

4 People v. Cummings, 88 Mich. 249; In re Campbell, 138 Mich. 597; In re Manaca, 146 Mich. 697. The indeterminate sentence provision is repeated in the Michigan constitution of 1908, art. v, sec. 28.

in 1903 adopted a constitutional amendment specifically authorizing the taxation of franchises and inheritances, in order to overcome decisions of the supreme court of that state that such taxes were unconstitutional. The constitutional provisions of Mississippi (1890), Virginia (1902) and Oklahoma (1907), abrogating or partially abrogating the common-law fellowservant rule, do not appear to have been occasioned by judicial decisions, but they were probably intended as precautionary measures, and they seem justified in view of the narrow interpretation given by the supreme court of Mississippi to the constitutional and statutory provisions of that state upon this subject.'

A recent writer has said that "if the court is to retain the absolute right to pass in the final result on the expediency of statutes passed by the legislature," some change will be necessary either in the courts or in the constitution.3 As has been indicated above, a change is rapidly taking place in our state constitutions, and these constitutions are being turned "from fundamental frames of government into statutory codes," largely because of the narrow and illiberal attitude of the courts in interpreting constitutional provisions. This development will probably go further than it has yet gone, and we may reasonably expect provisions to be introduced into state constitutions regarding employers' liability, hours of labor, payment of wages and other matters affecting industrial and social relations, where such provisions may be thought necessary to overcome judicial decisions of the states or may be thought desirable as measures of precaution against decisions which the courts might otherwise render.

State constitutional amendments of this character, made necessary by judicial decisions, are of course binding upon state courts only as regards the power of these courts to declare laws

1 State v. United States and Canada Express Company, 60 N. H. 219; Curry v. Spencer, 61 N. H. 624. Journal of New Hampshire Constitutional Convention of 1902, p. 596.

2 Bradford Construction Company v. Heflin, 88 Miss. 314 (1906). Learned Hand in Harvard Law Review, vol. xxi, p. 500.

invalid as in violation of state constitutions. The state courts are still free to declare state laws or state constitutional provisions invalid as in violation of the federal constitution; and if bound by definite provisions in state constitutions, they will probably base their decisions regarding the invalidity of laws upon the federal constitution. If the highest court of a state declares a state statute or a state constitutional provision invalid as in violation of the federal constitution, its decision is final, for there is no appeal to the United States Supreme Court from a state decision invalidating a state enactment as repugnant to the constitution or laws of the United States. The state courts may on this account limit the power of the states to a very great extent, in matters not already passed upon by the Supreme Court of the United States, and from their decisions there is now no appeal, although, of course, it is possible for the United States by act of Congress to permit appeals to the federal Supreme Court in such cases.

In matters with which the Supreme Court of the United States has had occasion to deal, the state courts are bound by the interpretation which the federal tribunal has placed upon the federal constitution. As regards measures already upheld by the United States Supreme Court, the states will be to a large extent freed from restrictions placed upon them by state judicial decisions declaring laws invalid, and may with impunity enact into their constitutions any provisions which the federal Supreme Court has in its wisdom held proper and expedient. Thus the states may, if they find it necessary to overcome state judicial decisions, insert in their constitutions provisions establishing an eight-hour day on public works or

1 As, for example, in State ex. rel. Johnson v. Chicago, Burlington and Quincy Railroad Company, 195 Mo. 228 (1905). Statutory alterations of state constitutions, such as are permitted in Virginia and Oklahoma, will of course be regarded by the courts simply as ordinary statutes. It is a question whether the distinction between state statutes and state constitutions is not breaking down, and whether the state courts are not becoming as free to declare state constitutional provisions invalid because repugnant to the federal constitution as state and federal courts are to declare statutes invalid as repugnant respectively to the state or federal constitutions. Thayer, Legal Essays, pp. 37, 38. See note in Illinois Law Review, vol. iii, p. 303.

2 Atkin v. Kansas, 191 U. S. 207.