EDITORIAL NOTES.

At least three decisions of nation-wide import were made by the United

States Supreme Court in December. The first, American Steel Foundries v.

Tri-City Trades' Council we give, probably in full, elsewhere, as taken

from the "New York Times." It is on the subject of strikes and

picketing, and speaks for itself. Another tested the law of Arizona,

which made picketing, etc., that tended to destroy an employer's

business, lawful, and the law was held to be unconstitutional, although

by a divided Court, 5 to 4. Among the dissenters was Mr. Justice Pitney.

The main opinion was lengthy and explicit, and we think, fair and just.

The third was on the subject of the "open competition" plan by which

members of the National Hardwood Manufacturers' Associations believed

they were getting around the Sherman Act, but are now told by the Court

their practices are in restraint of trade. The Association was

prosecuted by the Government in the Federal Court at Memphis, and a

permanent injunction was obtained against continuance of the practices

of filing by hardwood concerns of reports of business operations with a

central organization, such reports being open to all other members of

the organization. The opinion holding the conduct of the members of the

Association to be illegal was delivered by Justice Clark. As usual, of

late, there were dissents, this time by Justices Holmes, Brandies and

McKenna. The meetings of the members resulted in concerted action,

Justice Clarke stated, to raise prices regardless of conditions, and the

plan was termed by him "misleading and a misnomer" and "an old evil in a

new dress and a new name." He added that instead of a plan to promote

open competition it operated to restrict competition. It was futile, he

said, to argue that the plan was merely to furnish information which

could not be otherwise obtained. The secretary of the Association,

through an expert statistician, utilized replies to questionnaires and

other information furnished by the members of the Association as the

basis for bulletins and advices. These replies also were utilized in

predicting and promoting advances in prices, by withholding of products

from the market, awaiting higher prices.

* * * * *

In the second case referred to in the preceding paragraph the United

States Supreme Court thus laid down the rule as to the "secondary

boycott": It is to be observed that this [the case in hand] is not the

mere case of a peaceful secondary boycott, as to the illegality of which

courts have differed and States have adopted different statutory

provisions. A secondary boycott of this kind is where many combine to

injure one in his business by coercing persons against their will to

cease patronizing him by threats of similar injury. In such a case the

many have a legal right to withdraw their trade from the one, they have

the legal right to withdraw their trade from third persons and they have

the right to advise third persons of their intention to do so when each

act is considered singly. The question in such cases is whether the

moral coercion exercised over a stranger to the original controversy by

steps in themselves legal becomes a legal wrong. But here the illegality

of the means used is without doubt and fundamental. The means used are

the libelous and abusive attacks on the plaintiffs' reputation, like

attacks on their employers and customers. Threats of such attacks on

would-be customers, picketing and patrolling of the entrance to their

place of business and the consequent obstruction of free access

thereto--all had the purpose of depriving the plaintiffs of their

business. To give operation to a statute whereby serious losses

inflicted by such unlawful means are in effect made remedyless, is, we

think, to disregard fundamental rights of liberty and property and to

deprive the person suffering the loss of due process of law."

* * * * *

It is with deepest regret that an announcement in our obituary columns

in this issue includes the name of ex-Justice Bennet Van Syckel as a

deceased member of the Bar and jurist. Those who practiced under him in

the Circuits in former years, or who knew him as the bright,

fully-equipped ornament of the Supreme Bench, well understand that his

passing cuts off the last link between the Supreme Court of a few

decades ago and the Court as constituted to-day. Justice Van Syckel was

approaching 92 years of age, and many were the hopes that he would

retain his health and vigor of intellect until he reached an even

hundred years. The Courts wherein he sat, and the present older members

of the Bar will see to it that his merits are officially pronounced; we

can only say now that no eulogy to be given to his memory will do him

over-justice. His dignity, fairness and sound legal judgment on the

Bench were such that he deserved even greater honors than he received

and his private life was immaculate. An excellent portrait of the

Justice as he appeared in 1905 will be found in the Law Journal of that

year (Vol. 28, facing p. 6).

* * * * *

The following seems almost an impossible propaganda to come even from

Germany at this time, but especially from one of the sources named. The

"Pathfinders League," of Stuttgart, we assume to be a Social

(practically Soviet) organization, but the "Christian Young People's

Societies," must be at least a quasi-religious body. A circular sent out

and published by these organizations on July 22 last says:

"War is the most exalted and holiest expression of human activity. Some

day the hour of battle will strike for us, too, when we, as officers, go

forth against the enemy. The people, which is a minor politically, will

then fall into line of itself. In the days of secret, happy expectation

there then goes from heart to heart the cry: 'With God for King and

Fatherland!' Still and deep in German hearts there must live the joy of

battle and a longing for it. So, let's laugh to scorn those old women in

men's breeches who fear war and wail that it is horrible and criminal.

No and again, No! War is beautiful, and it is glorious to die for the

Fatherland and the hereditary ruling house. Our great ally above will

lead us splendidly."

In New York City there is a municipal ordinance requiring landlords, who

are to give tenants under a lease hot water, to furnish it or be

arrested, fined and, if thought wise by the magistrate, imprisoned.

Recently a landlord in the Bronx was found guilty of failure to supply

hot water, and it appeared that the landlord and tenant had somehow

become on unfriendly terms; that there was a special valve in the house

which permitted hot water to go to one apartment and to be shut off from

another; and that the landlord closed down the valve to shut off the hot

water of the complaining tenant. Thirty days in prison and a fine of

$250 was the penalty imposed by the Justices in Special Sessions.

* * * * *

Among the important decisions in the Court of Errors and Appeals in this

State on Nov. 14th last was one unanimously confirming the conviction of

the negro, George Washington Knight, for the murder of Mrs. Edith

Marshall Wilson, the church organist at Perth Amboy, in March last,

which murder the prisoner had confessed. (See N. J. L. J., April, 1921,

p. 102). Although the Court was unanimous in upholding the conviction of

Knight, three of the Judges, Chancellor Walker, Justice Kalisch and

Judge Black, differed with the view of the majority as to the

constitutionality of the Mackay Act of 1921 (Laws, Ch. 349), empowering

the Court of Errors and Appeals to review the sufficiency of the

evidence in criminal cases, where the defendant elects to take up the

entire record. Mr. Justice Kalisch wrote a minority opinion, concurring

in the affirming of the conviction but differing with the majority as to

the constitutional question involved. Chief Justice Gummere, in the main

opinion, said that the statute of 1921 was not novel, but is similar to

an Act passed more than twenty years ago, but subsequently repealed,

under which the Court of Errors set aside a conviction for murder in the

first degree. The first ground of attack was that the Mackay Act

violates the provisions of the Constitution relative to trial by jury,

which provides that the guilt or innocence of a defendant shall be

determined by an impartial jury. The Court said, however, that the

question of the verdict being in accordance with the weight of the

evidence cannot be raised by the State, but only by the defendant.

Therefore, the Court held, the constitutional protection afforded by a

jury trial is not lessened by the law under which the accused may elect

to have the evidence reviewed. The Court also held that the right given

the Court of Errors to order a new trial where the evidence seemed

insufficient was not a novel proposition, but was rather extending to

the reviewing tribunal a power now existing in the trial Court; that

such an extension of power, provided it does not trespass upon the

inherent powers of any other Court, is not unconstitutional. Having

decided the legal questions involved, the Court reviewed the testimony

upon which Knight was convicted and concluded it was sufficient to

justify the jury's verdict of murder in the first degree. Later, Mr.

Justice Bergen, before whom the Knight trial was held, resentenced the

prisoner to be electrocuted.

* * * * *

At the Convention of the Real Estate League of New Jersey in Newark

recently, Mr. Frank B. Jess, of Haddon Heights, whose experience on the

State Board of Taxes and Assessment has made him an authority on the

subject of taxation, its inequalities and shortcomings, stated with

positiveness that the personal property tax is a failure and always will

be a failure. "It is obvious," he added, "that if all the taxable

property in the State should be assessed at its true value, or at a

uniform percentage of true value, the burden of taxation would be

apportioned with exact equality. The chief objective of the assessing

system of the State, therefore, is uniformity of valuation. It would be

foolish to suppose that this ideal can ever be wholly attained. But it

is more foolish not to aim at its attainment. The scheme of assessment

should be devised with that end in view and so framed as to facilitate

its achievement. The prevailing scheme provides as many assessors as

there are taxing units. Even if each assessor were an expert the grand

result inevitably would be a great variety of valuations. As so many

assessors are not experts the absence of uniformity is all the more

conspicuous." Mr. Jess said that each assessor or assessing body is now

a separate machine, functioning independently in a particular territory.

He declared that an assessor should be a part of a system having a

central power plant functioning for the entire State.

* * * * *

After three days of argument by lawyers in the Federal case in New York

City concerning the intent of and Court decisions on the Sherman law

against trusts, Judge Hand imposed fines of $3,000 each on the seven

corporations and ten individuals who had pleaded guilty to violating the

Sherman Act. The defendants were those of the Terra Cotta Trust, and

included companies in New Jersey, at Perth Amboy and Rocky Hill. Nearly

at the same time Judge Van Fleet, so well known as a jurist of

California, but descended from an old New York and New Jersey family,

did better as to real justice with four members of the Tile and Mantel

Trust, who also had pleaded guilty to violations of the Sherman law, by

sentencing three of them to pay a fine of $4,000 each and to spend four

months in prison, and the fourth to pay a fine of $2,000 and to spend

two months in prison. There were also fines on others. The fines on all

members of the combine aggregated nearly $170,000. It is clear that only

by heavy fines with imprisonment added can the Sherman law against

widely-extended and injurious trusts be made to act as a deterrent of

such trusts in the future.

* * * * *

The Attorney-General of the United States, in an address at the last

meeting of the American Bar Association in Cincinnati, gave, as

suggestions, six rules for the handling of labor disputes. They were:

"First--It is an undisputed fact that the public have a right to know

what the quarrel is about in every actual or threatened strike or

lockout and similar controversies.

"Second--There should be some definite agencies in government for

ascertaining these facts fully and making an impartial finding by those

specially qualified both by temperament and training to do this

particular kind of work; and such finding should be reported so that it

will be a reliable source of knowledge to which students and publicists

and statesmen can resort.

"Third--Compulsory jurisdiction over these two factors to compel them to

submit to an inquiry of this sort is not only desirable but just.

"Fourth--At present our study of this question has not been sufficiently

thorough to warrant legislation compelling the acceptance of such

findings by the parties thereto. Therefore, the jurisdiction of the

proper agency should be obligatory upon the parties to submit to the

investigation; the acceptance of the finding by the parties should be

voluntary.

"Fifth--The experience of the past shows that in most cases full,

accurate, reliable publicity has been sufficient to compel an adjustment

of these cases. Public sentiment is a controlling factor and it is

important, in justice to both of the parties, that it should depend upon

something more accurate than successful propaganda.

"Sixth--In the course of time knowledge of the nature and causes of

these controversies derived in this way may crystallize public sentiment

to the extent that laws can be enacted making such controversies

impossible."

It will thus be seen that Mr. Dougherty does not favor obligatory

arbitration in the case of labor disputes, his view being that public

sentiment will decide them. But we have always been clear in our own

mind that there must be compulsory acquiescence in the findings of

whatever tribunal hears such disputes; otherwise one party or the other

will, too often, not acquiesce.

* * * * *

In a recent Chancery case, where an injunction had been ordered by the

Court restraining a corporation from doing anything while the matter of

a permanent receivership was under consideration, a voluntary petition

in bankruptcy was filed. In proceedings against certain officers of the

corporation for contempt in thus disobeying the injunction, Chancellor

Fielder suspended sentence upon the ground that, as a mitigating

circumstance, they had been badly advised, and said: "I think that the

conduct of counsel in the case was absolutely reprehensible. Counsel was

bound to know the law, and if he did not know the law, he ought to have

had common sense enough to know that an order of this Court restraining

any act of the corporation was sufficient to forbid the filing of a

voluntary petition in bankruptcy. If the order to show cause had been

directed to counsel I think I would find him guilty of contempt of

Court, and I don't think that any mitigating circumstance could be

offered in his behalf."

* * * * *

Our readers are receiving this month, in addition to the usual charming

article by former Judge Frederic Adams, a Fourth of July oration

delivered by Mr. Justice Parker of our Supreme Court in the Church of

St. Mary's-by-the-Sea, Northeast Harbor, Maine, two and a-half years

ago. Because this address is not recent gives special reason for its

publication now. We only learned recently of this address and, after

seeing it, requested of the Judge the privilege of publishing it in the

Law Journal, a request finally granted. It seemed to us not only that

the general matter and fine, clear statement of facts and elevated

American sentiments warranted the preservation of this address, but also

that our readers might be interested to compare what some of our best

minds thought of events at the close of the Treaty at Versailles and

what has really happened since in American and world affairs.

The New Jersey Law Journal, January, 1922 Vol. XLV. No. 1. Jan., 1922 · 第 2 / 25 题