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merit 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.

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

is 189 N. Y. 131.

courts are to a considerable degree tainted with error, and consequently furnish a solid basis in reason and justice for the present discontent with the administration of justice, may be fortified by a comparison of the Williams case16 with the Charles Schweinler Press case." Those cases involved the constitutionality of two statutes passed by the legislature of New York, one in 1903 and the other in 1913, by which night work in factories by women was prohibited. The provisions of the two statutes did not differ in any substantial respect. The facts on which the legislature acted in passing both statutes were substantially the same. Yet in the Williams case the Court of Appeals held the earlier statute unconstitutional and in the Charles Schweinler Press case the same court held the later statute constitutional. Why this flat inconsistency of decision? Simply and only because in the later case the facts showing the effect of night work in factories upon the health and morals of women, having in the meantime largely passed from the realm of facts unknown and unknowable by courts into the field of judicial notice, were brought fully to the knowledge of the court, while in the earlier case the court ignored such of those facts as were then within the field of judicial notice and was entirely ignorant of such of those facts as passed, between the years 1903 and 1913, into the field of judicial notice from the realm of facts unknown and unknowable by courts. Here, in the court's own words, is its explanation of the inconsistency:

"The statute under consideration in the Williams case, like the present one, prohibited night work by women in factories, and while its provisions were somewhat more drastic than those of the present one, it may be conceded that these differences were of details and would not serve to distinguish that statute from the present one in respect of its constitutionality. But the facts on which the former statute might rest as a health regulation and the arguments made to us in behalf of its constitutionality were far different than those in the present case.

That statute bore on its face no clear evidence that it was passed for the purpose of protecting the health and welfare of women working in factories, and while of course the presence or absence of such a label

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would not be controlling in determining the purposes and validity of the statute, it still was in that case an incident of some importance as leading to the conclusions finally expressed by Judge Gray and adopted by the court as appears by the quotations from his opinion hereafter made.

While theoretically we may have been able to take judicial notice of some of the facts and of some of the legislation now called to our attention as sustaining the belief and opinion that night work in factories is widely and substantially injurious to the health of women, actually very few of these facts were called to our attention, and the argument to uphold the law on that ground was brief and inconsequential.

Especially and necessarily was there lacking evidence of the Extent to which during the intervening years the opinion and belief have spread and strengthened that such night work is injurious to women; of the laws, as indicating such belief, since adopted by several of our own states and by large European countries, and the report made to the legislature by its own agency, the factory investigating commission, based on investigation of actual conditions and study of scientific and medical opinion that night work by women in factories is generally injurious and ought to be prohibited.

The failure adequately to fortify and press upon our attention the constitutionality of the former law as a health and police measure and to sustain its constitutionality by reference to proper facts and circumstances is sufficiently evidenced by what was said by Judge Gray: . . .

So, as it seems to me, in view of the incomplete manner in which the important question underlying this statute—the danger to women of night work in factories—was presented to us in the Williams case, we ought not to regard its decision as any bar to a consideration of the present statute in the light of all the facts and arguments now presented to us and many of which are in addition to those formerly presented, not only as a matter of mere presentation, but because they have been developed by study and investigation during the years which have intervened since the Williams decision was made. There is no reason why we should be reluctant to give effect to new and additional knowledge upon such a subject as this even if it did lead us to take a different view of such a vastly important question as that of public health or disease than formerly prevailed. Particularly do I feel that we should give serious consideration and great weight to the fact that the present legislation is based upon and sustained by an investigation by the legislature deliberately and carefully made through an agency of its own creation, the present factory investigating commission."

§ 26. These certainly were convincing reasons for not following the Williams precedent. Why did they not lead the Court of Appeals to a consideration of the whole subject of the legal effect of precedents under the American constitutional frame of government, and so to the conclusions that a precedent legally binds only the parties thereto inter esse in respect of the very subject involved therein and that the only proper use of precedents in courts is to treat them as more or less valuable evidence of what the law is? An answer to this question may be obtained by some further consideration of the Court of Appeals opinion.

§ 27. The Court of Appeals did not use the quoted reasons as ground for holding the Williams decision to have been erroneous, but as ground for holding that precedent distinguishable from the Charles Schweinler Press case. The court did not disagree with the Appellate Division minority opinion (§ 3 ante) on the point that the Williams decision was a binding adjudication if undistinguishable from the Press case, but on the point that it was distinguishable. It left open the question whether the Williams decision would have been binding if it could not be distinguished. This is shown by the following paragraph of the opinion which immediately precedes the part quoted above:

"Lastly, it is urged that whatever might be our original views concerning this statute, our decision in People v. Williams (189 N. Y. 131) is an adjudication which ought to bind us to the conclusion that it is unconstitutional. While it may be that this argument is not without an apparent and superficial foundation and ought to be fairly met, I think that a full consideration of the Williams case and of the present one will show that they may be really and substantially differentiated and that we should not be and are not committed by what was said and decided in the former to the view that the legislature had no power to adopt the present statute."

§ 28. The conception of the differentiation of precedents which was held by the Appellate Division minority judges and which heretofore has usually been held by judges and lawyers is that a precedent is undistinguishable from a later case if the facts contained in the record of the precedent and the questions of law necessarily decided by the judgment of the precedent (whether discussed in its opinion or not) are substantially the same as the facts and questions of law presented by the record of the later case. Rather than decide the question whether the Williams precedent was a binding adjudication the Court of Appeals changed the differentiation concept. What was the effect of resorting to this device of obviously dubious propriety? Read attentively, first, the quotation from the opinion in § 27 and then read again the quotation in § 25 and consider what the court really did. Did the court really differentiate the Williams case from the Press case? Did it not rather decide that the Williams case was not binding as an adjudication? Was not the pretended differentiation a mere sham, barely sufficient to hide from the court itself what it was doing, but easily seen through by anybody else who focuses his attention on it?

§ 29. We have, then, in the police power precedents exemplifications of errors which amply justify a strong feeling of discontent in the hearts of the people. And we have in the Charles Schweinler Press case a clear presentation of the underlying cause of the errors. False and unconstitutional habits of thinking about precedents, bearing the hall-marks of a superstition, fetter absolutely the minds of some of the judges, as in the case of the Appellate Division minority (§3 ante), and lead other judges of our highest courts (§§ 25-28 ante) into casuistry and self-deception.

§ 30. Examples of the ill effects of the mind-fettering and mind-deluding stare decisis attitude of mind of our courts are not confined to police power precedents or to cases involving constitutional questions. Similar examples involving interpretations of other statutes and of the unwritten or customary laws might be cited ad libitum.

§ 31. Is it not then evident that the courts need help to enable them to perform their high duties to the satisfaction of all the people, and that if these proposals are given the form of a statutory declaration of law the courts will have precisely the help which they need? Vol. L. 13

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