Page:The Green Bag (1889–1914), Volume 16.pdf/194

 Alton B. Parker. become the opinion of the Court. It is true that in the Ryan case just decided, the ques tion involved is the constitutionality of that part of the Act imposing on the city the pay ment of the prevailing rate of wages, while in the Rodgers case the part of the Act involved was that imposing such require ments on municipal contractors. In writing the opinion of the Court. Judge Parker naively says: "As expressed in the Rodgers case." etc., and then proceeds to quote from his own dissenting opinion! And he cour teously states that the Ryan case is not con trolled by the Rodgers case and distin guishes it, doubtless with a quiet satisfaction not shared by the now dissenting minority. Judge O'Brien, writing the dissenting opin ion, holds that the Court has necessarily de cided ihe question in the Rodgers case and that it is no longer open in this court. Judge Parker has now the further support of the United States Supreme Court in Atkin т1. State of Kansas mentioned above, and his reference to it indicates again, I suspect, in dependent research on his part of the Court; for it had evidently not been reported when the case was argued.1 1 The fact that the Court of Appeals lias apparently swung clearly around on the main question involved il lustrates one of the lamentable results flowing from onr present system in New York of providing judges for the court of last resort. Recently, under an amendment of the Constitution, certain justices of the Supreme Court were designated to actas Judges of the Court of Appeals, thus making the court temporarily consist of ten judges instead of seven. As only seven judges sit at one time, the personnel of the Court is constantly changing hack and forth, and what has happened in this case is that the two judges who wrote the dissenting opinion in the kodpers case, viz., Parker and Ilaight, have now with them two of the Supreme Court judges (Cullen and Werner), who were also at that time members of the Court, but who did not happen to be sitting, thus making the pres ent majority of four. On the other hand, of the five judges who determined thedecision in the Rodgers case, three of them were sitting in the recent Ryan case and again voted against the constitutionality of the law. (Judges O'Brien. Bartlett and Vann), but their two as sociates (T.andoii and Martin), who were still members of the Court, did not happen to be sitting in the Ryan case; so the former majority party of five has been turned into a minority vote of three; and this without a change in the opinion or the death or withdrawal from the Court of a single Judge.

This discussion of Judge Parker's recent opinions has been already too far pro tracted; but I trust that it is evident enough that anyone who cares to follow the work ings of a very active and vigorous judicial mind and of a very closely divided Court of last resort." will find of interest the contem porary- decisions of the New York Court of Appeals. Judge Parker's tendency, as above noted, is not only to hold private litigants sîrictly to the letter of their contracts, but is to refrain from relying on general princi ples of policy to nullify legislative enact ments. That this tendency in both cases illustrates the true path of a judge, is, it seems to me, unquestionable. We have seen plenty of vicious legislation, and are apt to see plenty more; but after all, the remedy for this sort of thing is not to be found in the judicial department. The remedy is often as bad as the disease. It can hardly be doubted that even though unintentionally, the United States Supreme Court in the Legal Tender cases was to a certain extent governed by questions of policy, and the resultant legacy of financial heresies sowed a crop of disorder and financial perturbation for more than twenty years thereafter. We complain of populistic legislation: but there are no worse expressions of populism than in some of the sober pronouncements of our courts of last resort. The decisions on com binations tending to monopoly have left the law in a state of combined uncertainty and perverseness. The only safe course for the judges to follow seems to be a rigid adher ence to their duties of construction and inter pretation, and a resolute refusal to interfere with the proper powers of the legislature. The dangers, passions and prejudices aroused by pending economic and political questions, pass away with the course of years; but the disintegrating influence of courts infected with the virus of judicial leg islation lasts for generations. We think Judge Parker's hesitancy in extending recog-