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 case13 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

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,1 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. Williams1 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

15 189 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.17 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

16 189 N. Y. 131.

17 214 N. Y. 395.

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 conclu