tions provisions limiting a day's labor in mines to eight hours. A series of decisions by the New York Court of Appeals, beginning in 1901, held unconstitutional state statutes regulating hours and conditions of labor on state and municipal public works. 211 An amendment to the constitution of New York, adopted in 1905, provides that the legislature shall have power to "regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed" by the state or any civil division thereof, or on public contracts. California in 1902, Montana in 1904, and Oklahoma in 1907 adopted constitutional provisions establishing an eight-hour day upon state and municipal public works. California, after three unsuccessful attempts of its legislature to enact a primary election law which would meet judicial approval, in 1899 adopted a constitutional amendment upon this subect in order to overcome difficulties raised by the court.' Michigan in 1902 by constitutional amendment authorized its legislature to provide by law for indeterminate sentences, thus overcoming a decision of the supreme court of that state declaring such a law unconstitutional.213 New Hampshire in 1903 adopted a constitutional amendment specifically authorizing the taxation of franchises and inheritances, in order to overcome decisions of the supreme court of that state declaring such

99 212

211 People v. Coler, 166 N. Y., 1; People v. Orange County Road Construction Company, 175 N. Y., 84; People v. Grout, 179 N. Y., 417. See also Cleveland v. Construction Company, 67 Ohio St., 197 (1902).

212 E. C. Meyer, Nominating Systems, pp. 196, 354. Marsh v. Hanley, 111 Cal., 368; Spier v. Baker, 120 Cal., 370; Britton v Board, 129 Cal., 337.

213 People v. Cummings, 88 Mich., 249; In re Campbell, 138 Mich., 597; In re Manaca, 146 Mich., 697.

taxes unconstitutional. 214 This development will probably go further than it has yet gone, and we may reasonably expect provisions to be introduced into state constitutions regarding employers' liability, hours of labor, payment of wages, and other matters affecting social and industrial relations, where such provisions may be thought necessary to overcome judicial decisions of the states or may be thought desirable as measures of precaution against decisions which the courts might otherwise render. The narrow and il

liberal attitude of the courts in interpreting constitutional provisions has done something, and if continued will probably do more, toward turning our constitutions "from fundamental frames of government into statutory codes." 215

214 State v. United States and Canada Express Company, 60 N. H., 219; Curry v. Spencer, 61 N. H., 624. Journal of the New Hampshire Constitutional Convention of 1902, p. 596.

215 Learned Hand in Harvard Law Review, vol. xxi, p. 500. That this fact is coming to be appreciated may be seen from a quotation from a recent article in a popular magazine: "However, just now the people are finding a way around the legislative veto of the courts. The voters are taking two methods of circumventing the legislative veto of the courts: First, by amending their state constitutions, or making new constitutions, and, second, by direct legislation or the modification of it known as the initiative and referendum. State courts are elective and therefore are afraid of majorities. They cannot declare constitutional amendments unconstitutional, and they handle laws adopted by a direct vote of the people with great care." William Allen White in American Magazine, vol. 67 (1909), p. 412. Attention should be called to the fact that the discussion above relates simply to cases in which laws have been declared unconstitutional where their repugnance to the constitution is not clearly apparent. Many cases of course arise in which specific restrictions imposed by one constitution are later deemed unwise and are removed either by amendment or constitutional revision, but such cases are not in point here. The above discussion relates only to state cases, but a good illustration of the same condition is presented by the federal income tax situation. An income tax law, not clearly unconstitutional and perhaps almost clearly constitutional, was held invalid by the federal Supreme Court, and now an attempt is being made to overrule that

State constitutional amendments of this character, made necessary by judicial decisions, are of course binding upon state courts only as regards the power of these courts to declare laws invalid as in violation of state constitutions. The state courts are still free to declare state laws or state constitutional provisions invalid as in violation of the federal constitution; and if bound by definite provisions in state constitutions they are apt to base such decisions upon the federal constitution. If the highest court of a state declares a state statute or a state constitutional provision invalid, as a violation of the federal constitution, its decision is final, for there is no appeal to the United States Supreme Court from a state decision invalidating a state enactment as repugnant to the constitution or laws of the United States The state courts may on this account limit the powers of the states to a very great extent, in matters not already passed upon by the Supreme Court of the United States, and from their decisions there is now no appeal, although, of course, it is possible for the United States by act of Congress to permit appeals to the federal Supreme Court in such cases.

In matters with which the Supreme Court of the United States has had occasion to deal, the state courts are in legal theory bound by the interpretation which the federal tribunal has placed upon the federal constitution. States may, therefore, without fear of being overruled by their courts, enact into their constitutions any provisions which the federal Supreme Court has in its wisdom held proper and expedient, for if such a provision has been enacted in accordance with the proper forms, it can then properly be annuled neither upon federal nor upon state constitutional decision by the cumbersome process of amending the federal constitution, and the attempt is apt to prove unsuccessful because of the cumbersomeness of the amending machinery.

grounds. Thus the states may, if they find it necessary to overcome state judicial decisions, insert into their constitutions provisions establishing an eight hour day on public works,216 or in mines," 217 a ten-hour day for females in laundries,218 but not a ten-hour day for both males and females in bakeries,219 or a truck act applying to all employers, 220

The point which I wish to make is that if the highest state court declares a state law invalid as in violation of the state constitution such a decision is final. If, however, legislation upon the matter in question is then introduced into the state constitution, the state court, if it again holds the enactment invalid, must declare it to be so because of its repugnance to the federal constitution, and in the latter case the state court is in theory bound by the decisions of the Supreme Court of the United States interpreting the federal constitution with reference to the matter under consideration; the hands of the state court are tied if a similar enactment has already been upheld by the federal tribunal. For example, if an act establishing an eight-hour day in mines were held invalid as violating a state constitution, such legislation might then be introduced by amendment into the state constitution itself. The state court cannot then properly declare the eight-hour law for mines invalid as a violation of the federal constitution, because the Supreme Court of the United States has already held such a law not to be unconstitutional." 221

216 Atkin v. Kansas, 191 U. S., 207. 217 Holden v. Hardy, 169 U. S., 366.

218 Muller v. Oregon, 208 U. S.,412.

219 Lochner v. New York, 198 U. S., 45.

220 Knoxville Iron Company v. Harbison, 183 U. S., 13.

221 The above example is an actual one. See In re Morgan, 26 Colo., 415; Holden v. Hardy, 169 U. S., 366; and Freund's Police Power,

The state courts thus possess what is practically an absolute veto on state statutory legislation, and on state constitutional provisions which have not already been approved in substance by the Supreme Court of the United States. By introducing legislation into their constitutions the states will, however, be free to act in the fields within which legislation has already been upheld by the Supreme Court of the United States. Only legislation which has been passed upon by the highest federal court may be safely introduced into state constitutions for the purpose of overcoming state judicial decisions.

Because of the fact that the amending process is free from many of the restrictions imposed upon ordinary legislation, and, to a certain extent also, because they have been directly approved by the people, amendments are less apt to be annuled by the state courts than are ordinary laws. Too much weight, however, must not be given to this distinction. The distinction between state statutes and state constitutions has already broken down to a very great extent, and state courts are practically as free to declare state constitutional provisions invalid, because repugnant to the federal constitution or to the state constitutional provisions regarding form of adoption, as are state and federal courts to declare state statutes invalid as repugnant either to the state or federal constitutions.

The function of annuling statutory or constitutional provisions is, it should be repeated, primarily a political and not a judicial function, and in many cases the result reached by the court depends more upon the opinion of the judges as to the wisdom of the measure under consideration than

sec. 155. But the state court still has power to declare the law invalid on federal grounds, and there is now no appeal from its decision.