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employers' business, and this will be so though the workmen are not consciously fraudulent. The possibility of compensation will inevitably direct their minds to the business as the cause of their sufferings, and often quite unconsciously they will come honestly to believe that all their misfortunes are due to their work therein. 23

But there is a further serious objection to allowing compensation for injury or diseases of gradual growth. The effect of so doing would be to throw upon the last employer the duty of pensioning every workman worn out by a lifetime of labor or invalided by long exposure to the unhealthy conditions necessarily incident to many employments. Unless some elaborate system, such as is found in the occupational disease section of the English Act of 1906, be provided for the apportionment of the compensation among all the various employers in whose service the workman has been engaged, the last employer will be forced to pay for the whole of a loss which his business has caused in part only. Not only will this work an injustice to the last employer, but the effect upon workmen themselves would be extremely unfavorable; it will become difficult for any man to obtain employment after he has passed the very height of his prime, and the point of superannuation will be very materially reduced.

Francis H. Bohlen. UNIVERSITY OF PENNSYLVANIA LAW SCHOOL.

[To be continued.)

23 See as to this the very interesting paper on “Some Defects in the Workmen's Compensation Act,” by R. J. Collie, M.D., J. P., Transactions of the Medico-Legal Society, vol. 6, p. 70, especially pp. 90-98.

IS LAW THE EXPRESSION OF CLASS

SELFISHNESS?

THIS

question has received an affirmative answer, in the fol

: “The rules of the law are established by the self-interest of the dominant class, so far as it can impose its will upon those who are weaker.” There is no such thing as abstract legal principles or abstract justice, we are assured. “The dominant class, whether it be priests or usurers or soldiers or bankers, will shape the law to favor themselves, and that code will most nearly approach the ideal of justice of each particular age which favors most perfectly the dominant class.” 1

In support of these propositions, the author refers to numerous decisions of the courts. The New York Court of Appeals a declared the state prohibitory liquor law of 1855 unconstitutional, so far as it destroyed the property in intoxicating liquors, owned and possessed by persons within the state, when the act took effect. On the other hand, the Supreme Court of the United States 3 upheld the constitutionality of the Kansas Prohibitory Liquor Law of 1881, which had been enacted to carry into effect the following provision of the Kansas Constitution, adopted by the people in 1880: “The manufacture and sale of intoxicating liquors shall be forever prohibited in this State, except for medical, scientific and mechanical purposes.” The prevailing opinion in the former case, the author praises as “a model of lucid and logical reasoning.” What has he to say of the Mugler decision and of other cases in accord with it? This: "The liquor business being obnoxious and ill-defended, the courts abandoned it to its fate, and generally held that property in liquor may be confiscated.”

4

i Brooks Adams in Centralization and the Law, 20, 45, 64.
? Wynehamer v. People, 13 N. Y. 392 (1856).
3 Mugler v. Kansas, Kansas v. Ziebold, 123 U. S. 623, 8 Sup. Ct. 273 (1887).
4 Brooks Adams in Centralization and the Law, 110.

That the liquor business was obnoxious to the majority of the citizens of Kansas must be admitted, but that Mugler and Ziebold were ill-defended is most surprising, for they had the services of George W. Vest and Joseph H. Choate. In another connection, he declares: “The weak, like the brewer or the lottery seller, fare in proportion to their weakness.” So far as the liquor business is concerned, statistics do not appear to bear out this charge. According to the census of 1850, the consumption of wines and liquors in the United States for that year was 94,712,853 gallons, while in 1880 it was 505,844,038 gallons. Certainly in the decisions referred to the liquor business did not fare in proportion to its weakness, for it was more than five times stronger in 1887 than in 1856.

In another set of decisions the author contrasts the rulings of the Supreme Court in certain elevator cases with those in certain railroad cases. His conclusion is that “these great roads represented a vast power and were protected accordingly," while the proprietors of the elevators "had not behind them an equal finan

,6 and therefore suffered the hard fate of the weak lottery seller and brewer.

This conclusion, it is submitted, is not in accordance with the facts. Justice Brewer, who dissented in the elevator cases, has declared," that neither in Munn v. Illinois, 8 nor in Budd v. New York,' nor in Brass v. Stoeser,10 was it "charged or shown that the rates prescribed by the legislature were unreasonable, and the only question was the power of the legislature to interfere at all in the matter."

cial energy,

In the railroad cases, however, it was charged that the rates fixed by the statute of Nebraska were unreasonable and operated to deprive the railroad companies of their property without due proCess of law. The trial court found that this charge was sustained

8

5 Brooks Adams in Centralization and the Law, 123. 6 Ibid. 123, 124.

7 Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 86, 22 Sup. Ct. 30, 33 (1901).

94 U. S. 113, 125 (1876). Chief Justice Waite pointed out that the regulation of rates did not necessarily deprive the elevator owner of his property; and that the Fourteenth Amendment simply prevents the States from doing that which will operate as such deprivation.

143 U. S. 517, 12 Sup. Ct. 468 (1892).
153 U. S. 391, 14 Sup. Ct. 857 (1894).

9

10

by the evidence, and the Supreme Court, after examining the evidence with great care, reached the conclusion “that as to most of the companies in question, there would have been, under such rates as were established by the act of 1893, an actual loss in each of the years ending June 30, 1891, 1892 and 1893: and that in the exceptional cases above stated, when two of the companies would have earned something above operating expenses in particular years, the receipts or gains above operating expenses, would have been too small to affect the general conclusion that the act, if enforced, would have deprived each of the railroad companies involved in these suits of the just compensation secured to them by the Constitution." 11

No fair-minded person can read the set of cases referred to by Mr. Adams with any tolerance for the doctrine which he teaches. They do not furnish the slightest warrant for the assertion that the Supreme Court laid down one rule for grain elevators in Munn v. Illinois, and a different one in Smyth v. Ames for railroad companies, and did this because in the intervening years “the social equilibrium had shifted,” and the investment in railways had increased from four and a half billions in 1876 to eleven and a half billions in 1898. Or, to use his words, “As the social weight of railways has increased, so has the tenderness of the courts in regard to anything which may impair their revenue. ... These great roads represented a vast power and were protected accordingly.”

If that doctrine were sound, inasmuch as the total railway investment is now about eighteen billions, we should expect to find the Supreme Court going to all lengths in its protection of railway interests. In fact it maintains no such attitude. For example, the railroad companies have sought exemption from the SafetyAppliance Acts,12 which seriously impair their revenue, but the Supreme Court has sustained their constitutionality; 13 has declared that they impose an absolute duty on the railroads which cannot be escaped by the exercise of reasonable care, 14 and that they apply to cars used in moving intrastate traffic on a railway which is a highway of interstate commerce.15

11 Smyth v. Ames, 169 U. S. 466, 547, 18 Sup. Ct. 418, 434 (1898). In closing his opinion (and there was no dissent), Justice Harlan said: “It may be added that the conditions of business, so far as railroad corporations are concerned, have probably changed for the better since the decree below, ... In that event, if the Circuit Court finds that the present condition of business is such as to admit of the application of the statute to the railroad companies in question without depriving them of just compensation, it will be its duty to discharge the injunction,” and enforce the statute.

12 Act of March 2, 1893, amended March 2, 1903, 32 Stat. at L. 943, C. 976.

The statement that litigants of "vast power are protected accordingly," while weak litigants “fare in proportion to their weakness," reads like a fairy tale in the light of such decisions, and of those in the Standard Oil 16 and in the Tobacco Trust Cases.17 It might be dismissed as a fairy tale, but for the mischief that it breeds. If law is invariably on the side of the heaviest social battalions, all that is necessary to transform the law breaker into the law maker is to shift the social equilibrium – to change the minority into the majority so as to overawe the courts. Such a doctrine leads directly to the recall of judges, otherwise the will of the dominant class might be balked by a judiciary, holding office for a fixed term, or for the life of its members; especially if it were old-fashioned enough to believe that its sworn duty consisted in earnestly endeavoring to do justice in each case, not in accordance with the membership of the litigants in the dominant class, but in accordance with established principles of law.

In a jurisdiction where the recall of judges prevails, we might expect to find legal rules fashioned and enforced from notions such as are described in the following extract:

"The Anglo-American law as to this liability (the liability of employer to employed] contains three rules which would seem to have been adopted with the idea of protecting the interests of the employer rather than those of the employed. They were furthermore adopted at a time when the political influence of the employed was not as great as that of the employer, and when it was considered expedient, if not necessary, to encourage where possible the investment of capital in industrial enter

13 St. Louis, Iron Mountain, etc. Ry. v. Taylor, 210 U. S. 281, 295, 28 Sup. Ct. 616, 621 (1908): “It is said that the liability under the statute as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that Congress intended it. ... The argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interest of the employee and of the public.”

14 Chicago, B. & Q. Ry. o. United States, 220 U. S. 559, 31 Sup. Ct. 612 (1911). 15 Southern Ry. v. United States, 222 U. S. 8, 32 Sup. Ct. 2 (1911). 16 Standard Oil Co. o. United States, 221 U. S. 1, 31 Sup. Ct. 502 (1911). 17 United States o. American Tobacco Co., 221 U. S. 106, 31 Sup. Ct. 632 (1911).

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