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$ 20. The phrase "judicial power” is not a happy one for denoting the power of courts. The word “judicial” in its broad sense and as very generally understood connotes the idea of the exercise of the faculties of observation, discrimination and judgment. The exercise of those faculties is not peculiar to or in any way specially characteristic of courts. They must be exercised by executives and by legislators. They must also be exercised by the individual man for the conduct of his personal affairs within his field of liberty. Whenever the law vests the right of decision as to any matter in a natural person or in a government official other than the courts, the courts are ordinarily bound by the judgments of those other persons.

§ 21. To amplify:

Not all controversies are justiciable. Not all matters involving the exercise of the mental faculties of observation, discrimination and judgment are committed by the law to the courts for determination. It is probable that a detailed survey of the whole field of human conduct would show that in the great majority of cases the courts are bound by law to accept the judgment of other officials or of unofficial persons and to base their action thereon, regardless of what their own opinions may be.

Who is the judge? Who has the right of decision? Is it the court, or is it some other tribunal or person? These are fundamental questions of jurisdiction which are expressly or implicitly involved in all controversies which come before the courts for adjudication. If the law vests the right of decision as to any subject in some tribunal or person other than the courts, the decision as to that subject of that other tribunal or person is ordinarily binding upon all courts, and they have no function to perform in regard to it except to enforce it. For example: the law makes the individual man the judge (in all ordinary matters) of what contracts he will enter into or be bound by. Ordinarily the court has nothing to do except to ascertain whether a contract has been made, and what its meaning is, and then enforce it; it would be usurpation for any court to assume to decide any of the questions which the parties to a contract have the right to decide for themselves. For another example: the law ordinarily makes the owner of property the judge of what disposition ought to be made of it after his death, provided he expresses and evidences his judgment and will in a certain way. Ordinarily the courts have nothing to do except to ascertain what the testator's judgment and will are, and then carry them into effect. So also the law vests the right of decision as to many most important questions in the legislative or the executive departments of government; as to such questions, the court has ordinarily nothing to do but to ascertain what the decision of the lawful judge is, and then enforce it. These are the general principles of the jurisdiction of courts. They are qualified in part, but only in part, and only in certain cases, by the further principle that it is for the courts to decide whether other tribunals have exceeded their jurisdiction by acting on a subject not committed to them; but, in exercising this special and difficult jurisdiction, the issue which the court has to pass upon is the issue of excess of power, and not the questions or matters which, as original questions, the law committed to some other tribunal or person for decision.

That these principles have a solid foundation in reason has never been questioned, and is manifest. Without them, and without a loyal submission to them, judges of courts would become the most dangerously lawless of men. Nobody's life, liberty or property would be safe.

Except through inadvertence, or when blinded by erroneous preconceptions, so that they lose their bearings, judges and courts always do recognize them and use them as guides of their official conduct.12

12 Martin v. Mott, 12 Wheat, 19;
U. S. v. Arredondo, 6 Pet. 691;
Williams v. Suffolk Ins. Co., 13
Pet. 415;

Rankin v. Hoyt, 4 How. 327;

Luther v. Borden, 7 How. 1;

Warren v. Van Brunt, 19 Wall. 646;

Quinby v. Conlon, 104 U. S. 420;
Fussell v. Gregg, 113 U, S. 550;

§ 22. For some curious and perhaps inexplicable reason the numerous judicial precedents in the law reports relating to the so-called police power, that is, the legislature's power to limit individual rights for safeguarding the common and collective rights of the people and for promoting the general welfare, show that the courts have seldom had in mind the inherent limitation of the power of all courts which has just been developed. They sometimes mention the limitation but in such a way as to show that they do not for the moment perceive its applicability to the legislature's finding of facts, unknown to the court and beyond the purview of what is called judicial notice, to be implied from the passage of the statute in question. They have refused to enforce many a statute because of their ignorance of the special facts which led the legislature to enact the statute,

For example: In the Jacobs case the constitutionality of a statute prohibiting the manufacture of cigars in tenement houses in certain cities was brought in question. The proceeding was habeas corpus and certiorari. It brought before the court only the facts involved in a charge of the violation of the statute. Upon those facts and upon certain facts of general knowledge which the court took judicial notice of, the statute was held unconstitutional and the prisoner released. The special facts as to tenement house conditions in densely populated cities were not before the court and in that proceeding could not in any legal mode have been brought before the court. Yet those conditions may have been such as plainly to affect the health and morals of the community. A determination by the legislature that such a state of facts did exist is a necessary inference or presumption from the passage of the statute. The court

Stanley v. Supervisors of Albany, 121 U. S. 535; Heath v. Wallace, 138 U. S. 573;

Pacific Telephone Co. v. Oregon, 223 U. S. 118;

tucky & I. Bridge Co., 64 Fed. Rep. 441;

McLeod v. Receveur, 71 Fed. Rep. 455;

Youngstown Bridge Co. v. Ken

Martin v. Board of Supervisors of Greene Co., 29 N. Y. 645.

13 98 N. Y. 98.

overlooked this and also that by the legislature's judgment as to the existence of those facts it was bound.

$ 23. For another example: In the Ives case, 14 about which there has been much loose talk, the New York Court of Appeals held a part of the Labor Law of 1910 unconstitutional, summing up its discussion of the police power in the following sentence: “In order to sustain legislation under the police power the courts must be able to see that its operation tends in some degree to prevent some offense or evil, or to preserve public health, morals, safety and welfare." The very form of this statement shows that the court misstated the question for its decision. The question was not one of sustaining legislation but of invalidating legislation. The court had no veto power and no appellate or supervisory jurisdiction over the legislature. The form of the statement also shows that in considering the constitutional limitation of legislative power the court for the time being forgot the limitation of its own power and its duty to accept as conclusive the judgment as to facts of the constitutional judge of facts for the purposes of such a statute, namely: the legislature. How can the court “see that its (the statute's) operation tends in some degree to prevent some offense or evil, or to preserve public health, morals, safety and welfare,” when by the very law of its own being its eyes must be bandaged against the light of all facts except only such as are admitted by the parties to the lawsuit presently sub judici, or as are proved by legal evidence in that proceeding, or are of such universal acceptance and belief as to be in a moral sense incontrovertible and therefore within the notice of the court? The legislature can see controvertible facts, can receive other than legal evidence and can draw conclusions of fact from such evidence and therefore can see plainly many things which it is impossible for the court to see; and it is under no constitutional duty to insert a state

14 201 N. Y, 271, 301.

ment of those facts in the statute which it passes or in any other way than in the mandatory provisions of the statute itself to make or preserve any record of its judgments, in regard to such matters of fact. Is not the true rule governing this subject substantially this: that the court must enforce the statute unless the facts of which it can take judicial notice necessarily negative the existence of any facts calling for the statutory provision in question, known by the legislature, but unknown and unknowable by the court?

§ 24. For still another example: The case of People v. Williams15 is a memorable one for two reasons—first, because it is the mind-fettering precedent to which the opinion of the Appellate Division minority quoted in § 3 ante refers; and secondly, because it furnishes the high water mark of the errors into which the courts of this country have fallen in dealing with the police power. Since that decision the tide of error has begun to ebb. In that case the question was as to the constitutionality of a statute prohibiting work by women in factories between certain hours of the night. Without knowing anything about the actual effect of night work in factories on the health and morals of women, and without alluding in any way to the superior facilities of the legislature in acquiring knowledge of the effect of such work, and without any attention to the presumption raised by the enactment of the statute that the legislature had found sufficient facts to sustain the statute, and without any attention at all to the constitutional limit of its own jurisdiction, the Court of Appeals held that women cannot be discriminated from men in respect of night work in factories and that neither men nor women can be prevented by statute from working in factories at night if they want to, and that consequently the statute was unconstitutional.

Ø 25. The conclusion to which the foregoing considerations point, namely: that the police power precedents in our

15 189 N. Y. 131.

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