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.