Ever since my boyhood the drama of the courtroom has interested me more
than the drama of the theatre. I well remember my introduction to
litigated business. I was a youngster on a visit to Boston when some one
took me to a Court where a patent case was on trial. I was duly
impressed by the imposing personality of the Judge, but my attention was
soon fixed by the witness on the stand, whom I happened to know, for my
father had once introduced me to him. He was Professor James Jay Mapes,
of Newark, New Jersey, a chemist and inventor, one of whose many
activities was the manufacture of fertilizers. I had visited one of his
factories, somewhere between Newark and Elizabeth, and was surprised to
see him at Boston in the rôle of a mechanical expert in a patent case.
As the examination carefully proceeded I concluded, with the rashness of
inexperience, that the examiner was a very dull man, for he seemed so
slow to get an idea. What I then mistook for dullness I now recognize as
professional skill, employed by counsel to unfold to the Court and jury
the details of a complex mechanism. I know now more about that case than
I did then, for, rather to my surprise, I have recently found a report
of it in the first volume of Fisher's "Patent Cases," at page 108. The
time was August, 1851, when I was not quite eleven years old. The
courtroom was that of the Circuit Court of the United States for the
First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company
was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L.
Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G.
Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of
the Supreme Court of the United States, who was then testing the
validity of the patent for the Colt revolver. The charge is reported in
full. The verdict was for the plaintiff.
Judge Woodbury was a New Hampshire man of some note, then in his
sixty-second year, called by Thomas H. Benton "the rock of the New
England Democracy," who had been Senator of the United States from New
Hampshire, and a member of the Cabinets of Jackson and Van Buren, and,
on the nomination of President Polk, had succeeded Judge Story as a
member of the Supreme Court of the United States. The trial of the case
in which I saw him was one of his last official duties, for he died in
the following month. He was succeeded by Benjamin R. Curtis, of Boston,
on the nomination of President Fillmore.
While I was at the Harvard Law School in 1863-4, Richard H. Dana was
United States District Attorney at Boston, and I often saw him at
Cambridge, where he lived. His book, "Two Years Before the Mast," was
and is a favorite of mine. I suppose that I have read it twenty times,
and I hope that the boys of this day read and love it. It is in a class
by itself. There is, I think, not in English, and probably not in any
language, another account of seafaring life written in the forecastle by
one of the crew, who was also a gentleman and a scholar and master of a
charming style. The veracity and spirit of the narrative have made it a
classic both here and in England. In California it is particularly
valued, for Dana was one of the pioneers and had sailed through the
Golden Gate on the "Alert" in the winter of 1835-6, many years before
the Mexican War and the discovery of gold, when San Francisco as yet was
not. When, at the end of the visit, the good ship floated out on the
tide, herds of deer came down to the northerly shore to watch the
unusual sight. Dana left college and went on this voyage to cure an
affection of the eyes. After his return he graduated at Harvard in the
class of 1837 and became a lawyer.
Mr. Dana was qualified by nature and training to become a leading figure
in the public life of this country, and his ambition was that way, but
the cards ran against him. As Goldsmith said of Burke, he was "too nice
for a statesman, too proud for a wit," high-strung and sensitive as a
race-horse, well bred and distinguished in bearing, a clear, graceful
and forcible speaker, an admirable advocate, and an accomplished jurist.
One of his greatest professional efforts and triumphs was his argument
before the Supreme Court of the United States in the Consolidated Prize
Cases, when he had to make it clear to the Court how it was that the
stupendous struggle in which the country was engaged could be a-war with
belligerent rights as between ourselves and other nations, and a local
insurrection as between ourselves and the South.
It may be remembered that, at the centennial anniversary of the battle
of Lexington, Mr. Dana delivered the oration. It begins with the words,
"How mysterious is the touch of fate which gives immortality to a spot
of earth, to a name." It is a noble commemorative address. Concord has
always plumed itself because it had a real fight, while the Lexington
men only stood up to be shot at and did not damage the English. As the
anniversaries were approaching and good-natured rivalry was in the air,
Concord issued a prospectus of some kind, which did not suit Mr. Dana's
fastidious taste, and he said to Judge Hoar, of Concord: "How is it,
Judge, that you folks at Concord have sent out such a shabby,
badly-written paper? It is positively ungrammatical." "O," said the
Judge, "you know, Dana, at Concord we always did murder the King's
English."
While Mr. Dana was United States District Attorney he tried the last
slave-trading case. The vessel was the "Margaret Scott," which was
fitted out, I think, at New Bedford, but did not actually embark on the
voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme
Court of the United States. I heard Mr. Dana's summing up and the charge
to the jury. Judge Clifford was a tall man of great girth. He stood
throughout his admirable charge, which took him an hour to deliver.
After about half an hour he told the jury that they might be seated.
Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the
United States Supreme Court, once told me this story, which he got from
Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne
and, during the latter part of his service, was crippled and dozed a
good deal, and sometimes used to annoy Judge Swayne by speaking to him
in a stage whisper. A prize case was on trial and there was discussion
about belligerent rights, which one of the counsel pronounced
belli_ge_rent. The novelty of the pronunciation roused Judge Grier, who
said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne,
Judge Clifford is the belli_ge_rent member of this Court."
In 1868, while at Boston, I heard part of the argument in the remarkable
case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The
case was tried before Judge Clifford in the Circuit Court of the United
States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge
of the Supreme Court of the United States), were leading counsel for the
complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of
Massachusetts, was leading counsel for the respondents. The complainant,
who is better known to us by her married name of Hetty Green, had filed
her bill setting up a special contract between herself and her aunt,
Sylvia Ann Howland, for an exchange of mutual wills, and that neither
should make any other will without notice to the other and a return of
the other's will. Miss Howland had died, leaving a will not in favor of
Hetty, but largely to charity. The respondent, Mandell, was her
executor. The case is reported in 3 Clifford's Circuit Court Reports,
page 169. Judgment was for the respondents, Judge Clifford saying, in
his decision: "In this case there was no competent evidence to show that
there was any agreement as to the making of mutual wills, and there was
nothing on the face of the instruments to warrant any such conclusion."
Mrs. Green, whom I saw for the first time, was in Court with her
husband, a large, dressy man, looking like an English guardsman. Much
testimony had been taken. There was a question of forgery, and enlarged
photographs of signatures were standing about. Judge Curtis spoke for
two days, one day on the facts and one day on the law, a length unusual
for him, for he was generally brief. I heard Mr. Bartlett's opening and
part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great
lawyer, but not, I should say, a very good speaker. His reputation was
for condensation and concentration; for making a direct thrust at the
central point, with small regard for introductory and collateral
matters. Someone, I think a Judge of the Massachusetts Supreme Court,
said that Mr. Bartlett's mental operations on matters of law bore about
the same relation to those of the average lawyer that a book of
logarithms does to a common school arithmetic. He continued in active
practice until about the age of ninety, made a large fortune, and was
famous for his high charges. He was no recluse, but a club man and
citizen of the world.
This was not the first time that I heard Judge Curtis. To follow any
argument of his was an ever fresh delight. I remember as though it were
yesterday the neatness and felicity with which, in the case just
mentioned, he dismissed one of several propositions submitted by his
adversary, saying, with his usual dignity and composure: "I now come to
another of this series, I believe it is the ninth. Like all of them, it
is not pleaded; like most of them, it is not proved; and, like each and
all of them, it would be totally immaterial if it were both pleaded and
proved." And then, in his last sentence, with exquisite tact, he lightly
touched a certain string: "On one side of this case stands the
complainant, with a large fortune; on the other side is a charity; but
this Court observes the divine injunction, 'Thou shalt not respect the
person of the poor, nor honor the person of the mighty, but in
righteousness shalt thou judge thy neighbor!'"
My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to
some lines in "The Professor At The Breakfast Table" which speak of
Judge Curtis, who was a classmate of Dr. Holmes:
"There's a boy--we pretend--with a three-decker brain,
That could harness a team with a logical chain;
When he spoke for our manhood in syllabled fire,
We called him 'The Justice,' but now he's 'The Squire'."
He who runs may read. The class of '29 had its twenty-five years
meeting, always a great event, in 1854. Judge Curtis was then on the
Bench and it was probably then that he spoke for the manhood of the
class. He resigned his office in September, 1857, and became a "Squire."
Judge Curtis was a master of the difficult art of Nisi Prius duty. No
one could be more courteous, patient and impartial, better equipped with
law, more accurate as to fact, or clearer in his rulings and
instructions. Any Judge who has spent several of the best years of his
life in learning how easy it is to try badly a case with a jury and how
hard it is to do it well, will be interested to read the passage which I
quote from a private letter written by Judge Curtis to Mr. Webster after
he had been on the Bench for about a month:
"I presume you will agree with me that there is no field for a lawyer
which, for breadth and compass and the requisitions made on all the
faculties, can compare with a trial by jury; and I believe it is as true
of a Judge as of a lawyer that, in the actual application of the law to
the business of men, mingled as it is with all passions and motives and
diversities of mind, temper and condition, in the course of a trial by
jury what is most excellent in him comes out and finds its fitting work,
and whatever faults or weaknesses he has are sensibly felt."
The great event of his judicial career was his dissenting opinion in the
case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in
which he asserted the constitutional power of Congress to prohibit
slavery in the territories. This was the doctrine of Webster and Mason
and of the coming Republican party. Mr. Lincoln, in his debate with
Douglas, carried this dissenting opinion with him. There were nine
Judges, each of whom filed an opinion. Five Judges were from slave
States and were probably themselves slave-holders. Chief Justice Taney
wrote an opinion which is called "Opinion of the Court," but may be more
accurately described as the opinion of Chief Justice Taney and Judge
Wayne, for Judge Wayne, who also filed a separate opinion, was the only
one of the six Judges voting with the Chief Justice who concurred in all
his points, reasonings and conclusions. Even at this day one cannot read
without a shudder the Chief Justice's unflinching declaration as to the
helpless and hopeless status of the negro. Judges McLean and Curtis
filed dissenting opinions.
There are complexities in the record which make it difficult for even a
lawyer to determine just how much of the opinions filed by a majority of
the Court is decision and how much is _dictum_. The Chief Justice
withheld from the files the so-called "Opinion of the Court," and made
additions and alterations to the extent of eighteen pages, in evident
answer to the filed dissenting opinion of Judge Curtis, and instructed
the clerk not to furnish a copy of the "Opinion of the Court" to anyone
without the permission of the Chief Justice before it was published in
Howard's "Reports," so that Judge Curtis, on application to the clerk,
was unable to obtain the amplified opinion. There ensued a
correspondence between Judge Curtis and the Chief Justice in which Judge
Curtis kept his temper admirably and the Chief Justice nearly, if not
quite, lost his, and did so, I think, because he felt that he was in the
wrong.
Judge Curtis, by leaving office in 1857, at the age of forty-seven,
surprised his friends and the country. There were two reasons for it.
The state of the Court was such that he did not feel comfortable in it.
This does not refer to his controversy with the Chief Justice, to whose
memory he afterwards paid a cordial tribute. Indeed, it may be doubted
whether he would have felt much more comfortable as a member of the
Court under the reign of Lincoln than he was under the reign of
Buchanan. He was no party man and did not belong in either camp. His
all-sufficient and avowed reason for resigning was that he could not
live on a salary of $8,000, and felt bound to secure for himself and his
family what Burns calls "the glorious privilege of being independent."
This purpose was amply realized. He went at once and inevitably to the
front rank of the American Bar and remained there for seventeen years,
during which time his professional earnings amounted to about $650,000.
This was not in our day of big business, when members of the Bar, who
are great men of affairs, but not necessarily great lawyers, receive, or
are supposed to receive, rich rewards for services in the organization,
manipulation and combination of colossal corporate interests. The annual
income of Judge Curtis was not much over $38,000, but, like Mercutio's
wound, it was enough, it would serve, and it was fairly earned in the
regular practice of his profession, at his office desk, in the trial of
cases, and in writing opinions on important questions submitted to him
from all parts of the country. He stood so high that his written opinion
would often be accepted by both sides of a controversy as the veritable
voice of the Law itself.
I first saw and heard Judge Curtis at New Haven in 1864, in the trial of
a suit in equity brought in the Circuit Court of the United States for
the Second Circuit by the Lowell Manufacturing Company against the
Hartford Carpet Company for an injunction and accounting. Judge Curtis
led for the complainant, and the special interest of the case was that
he had against him an opponent worthy of his steel, a man five years his
senior, of different race, creed, politics and temperament, Charles
O'Conor, the brilliant leader of the Bar of New York. The two men were
evidently no strangers to one another. Judge Curtis had said at a dinner
party that he regarded Mr. O'Conor's management of the Forest Divorce
Case as the most remarkable exhibition of professional skill ever
witnessed in this country. In the case which I heard at New Haven the
associate counsel were able men, Mr. Edwin W. Stoughton for the
complainant and Mr. George Gifford for the respondent, both prominent
patent lawyers of New York. The Judges were Samuel Nelson of the Supreme
Court of the United States and William D. Shipman of the District Court.
It was pleasant, after the crudities of county practice, to see the
mutual courtesy of the two leaders. I happen to remember a few gracious
words of Judge Curtis: "and such rights, as no one knows better than the
admirable lawyer on the other side, do not lie in covenant, but do lie
in grant." The argument was not fully intelligible to me, for it dealt
largely with considerations arising out of written contracts with which
I was not familiar, but it was entertaining and instructive to watch the
two men. There came on each side a grateful gleam of fun. While Mr.
Stoughton was speaking of the terms of a contract, Judge Curtis, who sat
near him, interjected the words: "and no longer." Mr. O'Conor in his
argument laid hold of this and said: "Why, you might as well say, 'as
long as grass grows and water runs,' 'and no longer'." I recall only one
precedent for such an expression. It comes from a land from which we get
very little law, though it has given us some lawyers. It is a verse of
an old Irish song:
"Then Pat was asked would his love last,
And the chancel echoed with laughter, O,
O yes, said Pat, you may well say that,
To the end of the world and after, O."
Mr. Gifford, in his argument, had referred to a certain United States
statute which, as he said, the Supreme Court had found difficulty in
construing. Mr. Curtis, in his closing argument, said: "That statute
reminds me of a story of a learned divine of this State who once
preached a sermon upon a difficult text in one of St. Paul's Epistles,
and said, finally: 'My brethren, I have now given you the results of my
most careful study and reflection upon this passage of Scripture, but I
feel that, in justice to myself, I ought to say that I very much wish
that the Apostle had not used those words'."
When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat
after speaking for five hours, the afternoon was getting late, and I
heard Judge Curtis say to Mr. Stoughton: "I have to answer more than
seven hours of solid argument. I cannot do it in two hours, and shall
ask that the case go over until to-morrow." It was so ordered. In the
evening he said to a friend of mine: "Nothing has been said on the other
side which cannot be answered. The question is whether I can do it." He
spoke the next day for two hours and twenty minutes and closed the case.
This litigation resulted in a victory for Mr. O'Conor and his
associates. In July, 1864, Judge Nelson wrote a short opinion dealing
with contractual rights and gave judgment for The Hartford Carpet
Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent
Cases, 472).
The Judges and counsel, with the juniors from the Boston and Hartford
offices, dined together every day at the New Haven House, and a
congenial company it was. Mr. O'Conor, when he was at liberty, would put
on the back of his head the silk hat which he always wore and say:
"Who's for a walk?" and go off on a tramp under the elms. He was a
spare, active man, of nervous temperament and great vitality. In New
York he lived at Fort Washington, on the Hudson, and used to rise early,
walk to his club on Fifth Avenue, breakfast there and then go down to
his office.
The keynote of Judge Curtis was serenity, that of Mr. O'Conor was
intensity. Beginning to tread law at the age of sixteen, Mr. O'Conor
fought his way to the lead, an achievement which no one who knows New
York City will be disposed to underrate. In the fine old common law
phrase, he "made war for his clients." He was tremendously combative
within the rules of the game, and absolutely fearless and independent.
His opinions were often extreme and sometimes eccentric. I heard him say
at the New Haven House, in the middle of the War for the Union, to a man
who asked for political advice: "Take the bull by the horns. Every
dollar spent and every life lost in this War is just so much thrown into
the great deep." It was like him to offer his professional services to
Jefferson Davis in his evil day. He prophesied or hoped that "some
future Tacitus" would arise to pronounce the verdict of history on Chief
Justice Taney as _ultimus Romanorum_. There was a noble side to Mr.
O'Conor's nature. With all his law he was an idealist. In accepting some
now-forgotten nomination to the Presidency, he wrote this ringing
sentence: "To spend in one's allotted place a blameless life of honest
effort, and at its end to perish nobly contending in the Thermopylæ of
an honest cause, has always been to me the perfection of a happy
individual destiny." Let this be his epitaph.
It remained for Judge Curtis, a few years later, to perform a
professional duty which made him for the second time a prominent figure
in the law and politics of the country. This was his opening argument
for the defense in the Impeachment Trial of President Johnson. In a
private letter written during that trial, he said: "There is not a
decent pretense that the President has committed an impeachable
offense." Most intelligent persons will now agree with him. His argument
is a masterpiece of luminous reasoning and exposition, and concludes
with this grave warning:
"It must be unnecessary for me to say anything concerning the importance
of this case, not only now, but in the future. It must be apparent to
everyone in any way connected with or concerned in this trial that this
is and will be the most conspicuous instance which ever has been or can
ever be expected to be found of American justice or American injustice,
of the justice which Mr. Burke says is the great standing policy of all
civilized States, or of that injustice which is sure to be discovered
and which makes even the wise man mad, and which, in the fixed and
immutable order of God's providence, is certain to return to plague its
inventors."
* * * * *
A landlord is held to be deprived of his property without due process of
law by a statute giving the tenant the privilege of holding over at
pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614,
annotated in 11 A.L.R. 1238, on the constitutionality of rent laws.
MAXWELL v. PINYUH.
(N. J. Supreme Court, Jan. 20, 1922).
_New Trial--Rules of Supreme Court--Orders of Judges--Relaxation of
Rules._
Case of Louise Sylvester, Plaintiff, against George S. Pinyuh,
Defendant. On motions to vacate certain Rules and Orders.
Mr. Harry R. Cooper for Plaintiff.
Mr. William J. Hanley, Mr. O. J. Pellet and Mr. Harlan Besson for
Defendant.
Heard before Justices TRENCHARD, BERGEN and MINTURN.
PER CURIAM: This is a motion by the defendant to vacate certain rules
heretofore made in the above entitled cause, and a counter motion by the
plaintiff to strike out the restraint imposed upon her in a rule to show
cause granted by Mr. Justice Minturn on the 25th day of October, 1921,
and for permission to perfect her proceeding for a new trial. The facts
are substantially as follows:
In September, 1921, the case (a Supreme Court issue) was tried in the
Monmouth Pleas on an order of reference made by a Justice of the Supreme
Court.
The jury found a verdict for the defendant, and the plaintiff, on the
22d day of September, applied to the trial Judge for a rule to show
cause why a new trial should not be granted, which order was allowed by
the trial Judge and was made returnable before him on the 6th day of
October, 1921.
On the return day of the rule, the attorney for the defendant appeared
before the Judge and objected to his hearing the rule on the ground
that, it being a Supreme Court issue, the rule must be heard by the
Supreme Court. Judge Lawrence reserved decision in the matter, and
thereafter came to the conclusion that the action had become a Common
Pleas case, and that the rule could properly be heard before him, and
fixed October 7th, 1921, for the hearing of same.
In the meantime defendant's attorney procured from Mr. Justice Minturn a
rule to show cause, returnable before the Supreme Court on the first
Tuesday of November, 1921, why judgment should not be entered in favor
of the defendant against the plaintiff on the postea, and why the trial
Judge should not sign the postea, and restraining the plaintiff from
further proceedings until the further order of the Court. A copy of this
rule was served upon Judge Lawrence and he thereupon concluded that the
rule must be heard before the Supreme Court, and he signed the postea.
Plaintiff's attorney was evidently under the impression that, after the
postea had been signed by Judge Lawrence, the object of the rule allowed
by Justice Minturn was served, and that the stay contained therein was
no longer effective and did not restrain him from taking the necessary
proceedings to bring on the argument of the rule before the Supreme
Court. He accordingly obtained from Judge Lawrence (who evidently
entertained the same view) a rule amending the previous rule granted by
him to the extent that the argument should be heard before the Supreme
Court on the first Tuesday of February.
Apparently, because of the uncertainty on the part of plaintiff's
attorney as to whether the rule originally granted by Judge Lawrence,
and the reasons on which plaintiff rested her motion for a new trial,
should be filed in the office of the Clerk of the Supreme Court, or in
the office of the Clerk of the Court of Common Pleas, these papers were
withheld from the files and were not filed within the ten days required
by the rules of this Court. A copy of the reasons and rule were,
however, immediately served on the attorney for the defendant.
Depositions were also taken by the plaintiff under the rule.
On the 15th day of December, 1921, plaintiff's attorney obtained from
Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show
cause allowed on the 22d day of September, as amended by the rule made
by Judge Lawrence on the 30th day of November and the reasons on which
plaintiff based her motion for a new trial, with the same force and
effect as if the same had been filed within the time limited by law,
and, immediately after that rule was granted, filed the rule made by
Judge Lawrence and the plaintiff's reasons in the office of the Clerk of
the Supreme Court. A copy of the depositions which were taken under the
original rule granted by Judge Lawrence were also served on the
defendant's attorney.
No state of the case has yet been prepared and served, but it is stated
to be the plaintiff's intention, should the Court permit her to do so,
to immediately prepare and print her case and bring on the rule for
argument at the February Term of the Supreme Court.
The defendant moves to vacate the rule of September 22d, and the rule of
November 30th, amending it; to vacate the rule allowed by Justice
Kalisch permitting plaintiff to file such rules and the reasons. The
plaintiff moves to vacate the restraint imposed upon her by the rule
allowed by Justice Minturn October 25, 1921, and also moves to be
allowed to perfect her proceedings for a new trial, and to bring on the
same for argument, according to the rules and practice of the Court, at
the February term.
We think the defendant's motion should be denied and the plaintiff's
motions granted.
It is of course apparent, and the plaintiff freely admits, that the
rules to show cause why a new trial should not be granted were irregular
and defective and that they have not been brought on in accordance with
the rules of the Supreme Court; but evidently the sole reason therefor
was the confusion existing, both in the mind of plaintiff's attorney and
that of the trial Judge, as to whether the application for a new trial
should be heard before the trial Judge or before the Supreme Court.
It seems not to be disputed that substantial reasons exist for giving
consideration to plaintiff's application for a new trial. In granting
the rule to show cause why a new trial should not be granted the trial
Judge evidently felt that the plaintiff should be given her day in Court
upon the reasons which were presented to him why the verdict of the jury
should not be set aside. We feel that this Court should not allow the
technical infirmities in the proceeding to deprive the plaintiff of an
opportunity to be heard when, by a suspension or relaxation of its
rules, a possible injustice may be avoided. Rule 217 of the Supreme
Court provides: "The time limited in these rules for the doing of any
act may, for good cause, be extended (either before or after the
expiration of the time), by order of the Court, or a Justice or a Judge
thereof." Rule 218 provides: "These rules shall be considered as general
rules for the government of the Court and the conducting of causes; and
as the design of them is to facilitate business and advance justice,
they may be relaxed or dispensed with by the Court in any case where it
shall be manifest to the Court that a strict adherence to them will work
surprise or injustice."
We therefore deny defendant's motion to vacate the rules heretofore
obtained by the plaintiff to perfect her proceedings for a new trial,
and we grant the plaintiff's motion to vacate the restraint imposed in
the order of Mr. Justice Minturn, and also grant the plaintiff
permission to perfect her proceedings for an application for a new
trial, and also permission to bring the same on for argument at the
February term of this Court, according to the rules of this Court. The
relief thus granted to the plaintiff will be upon terms that she pay the
defendant costs upon these motions; all other costs to abide the event.
STATE v. GROSS.
(N. J. Supreme Court, Jan., 1922).
_City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal
of Persons from Railroad Train._
Case of The State against Jacob Gross, Prosecutor. On certiorari
dismissing conviction.
Mr. Charles W. Broadhurst for the Rule.
Mr. Joseph J. Weinberger for Prosecutor.
Argued before Justice MINTURN by consent.
MINTURN, J:. The prosecutor of this writ was convicted before the
Recorder of the City of Passaic for violating section 72 of an ordinance
of that city which provides as follows: "That any person, who shall in
any place in the city of Passaic, make, aid or assist in making any
improper noise, riot, disturbance or breach of the peace, or shall
behave in a disorderly manner, or make use of obscene or profane
language ... shall each be liable to a penalty of five dollars for every
offense."
The violation complained of was that, while he was a passenger on an
Erie Railroad train, and while the train had stopped at Passaic, he
refused to remove his baggage from between the seats to the baggage
compartment at the request of the conductor, as a result of which the
prosecutor became noisy and boisterous, and the conductor thereupon
caused the removal of the prosecutor and his baggage from the car, and
turned him and it over to a local police officer. He was thereafter
prosecuted as a disorderly person and convicted of that offense.
Various legal grounds are advanced as a basis for vacating the
conviction. One only I deem fatal to its validity.
The ordinance in question was intended to apply to public places within
the city for the purpose of suppressing disorderly conduct therein, and,
while in a limited sense a steam railroad car is a quasi public place as
between the State and the railroad, it cannot be reasonably construed as
furnishing such a public place within the contemplation of the local
legislative body, when they passed this ordinance. A similar contention
was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was
held that a saloon, although a public house in contemplation of law, is
not a "public place" within the contemplation of the provisions of the
Disorderly Act. The words "public places" in this connection were held
to be "such places as are in general use for travel by all citizens, and
in which all have at all times an equal right of passage and repassage."
Adopting this rule of construction the railroad coach in question was
not a "place" to which the jurisdiction of the city can be said to
extend, and the word "place," therefore, in this connection, must be
held to be equivalent to "public place." That this is so is made
manifest from the context of the section of the ordinance invoked upon
the doctrine of _noscitur a sociis_. Thus, the person charged must not
only be in "a place in the city of Passaic," but he must "make, aid or
assist in making any improper noise, riot, disturbance or breach of the
peace, or shall behave in a disorderly manner or make use of obscene or
profane language."
This enumeration of specific acts of misdemeanor connotes, generally
speaking, the ordinary offense of disorderly conduct, such as is
condemned in our Disorderly Act; and, as has been observed, such
disorderly conduct, to be the subject of public prosecution, must occur
in a "public place," within the jurisdiction of the City Magistrate, and
the environment of the city. A travelling car manifestly is not such a
public place. 32 Cyc. 1249 and cases.
The fact that the prosecutor was noisy in asserting his rights can make
no difference in the result, for we may, from experience, judicially
notice the fact that the inter-urban railroad train presents no suitable
accommodation for one inclined to indulge in either introspection or
somnolence. Therefore, an ordinary conversation in a major key when
indulged, as was the case here, between a conductor, with a book of
railroad rules in his hand emphasizing his duty, and a protesting
commuter with an innocuous bag, the owner of which attempted to
vindicate in Yiddish-English the rights of the American travelling
public, might be the means of provoking an innocent mental diversion for
the benefit of the curious passengers, but could hardly be said to
evolve the serious accusation of disorderly conduct in a public place,
within the meaning of the ordinance. A discussion in an elevated key on
a railway carriage, whether it concern a bag or the suspected contents
of a bag, is not an unusual episode in everyday American railway life;
nor can it be said to be without its compensation and exhilarating
effect upon the general body of passengers, so long as it does not
assume the intolerant form of vulgarity, or obscenity, and thus warrant
the ejection from the train of the malodorous disputant.
The fact, of course, is that the voluminous resonance of a conversation
cannot be utilized as a standard to guage either its criminality or its
literary value, and yet debates in the halls of legislation, in the
Courts of justice, not to speak of fulminations from the pulpit, are
often measured by the volume of vocalization and the density of lung
power behind them.
If precedent were invoked from the classics, we have it in "Sweet
Auburn;" where, in fancy, we hear the
"Loud laugh that spoke the vacant mind;"
and Goldsmith's pen picture has placed the vociferous schoolmaster among
the immortals, whose
"Words of learnèd length and thundering sound
Amazed the gazing rustics ranged around."
All of this, and more, is familiar experience on the railway train, and
thus far has escaped the proscription of the authorities.
In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at
a schoolmeeting became, in the language of this Court, "quite noisy and
excited." His conception of public duty led him to indulge in what the
complainant called "loud language," and for this he was prosecuted under
the provisions of the Disorderly Act, which prohibits in "public places"
the use of "loud, offensive or indecent language." There was no proof of
the indecency or offensiveness of his speech, and this Court held that
the uttering of "loud" language was not enough to sustain the complaint.
These considerations, without reference to the other objections
presented, lead me to conclude that the judgment of conviction should be
vacated, and such will be the order.
STATE v. CAPRIO.
(Before Hon. Fred G. Stickel, Jr., as Magistrate. Nov. 2, 1921).
_Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits
and Certain Liquors._
Case of State against Luigi Caprio. On application to restore property
and liquor taken under search warrant issued under the Prohibition
Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court
of Common Pleas, acting as Magistrate under the Prohibition Enforcement
Act.
Mr. Anthony R. Finelli for application.
Mr. J. Henry Harrison, Prosecutor of the Pleas, opposed.
STICKEL, JR., MAGISTRATE: On October 3rd, 1921, acting as Magistrate
under the Prohibition Enforcement Act, I issued a search warrant
directed to Richard Roe, authorizing a search of the drug store, cellar
and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a
seizure of the liquor there found, together with all vehicles, fixtures,
containers, utensils, machines, contrivances, or paraphernalia
whatsoever, there found used or intended to be used in the illegal
keeping, manufacture, transportation or sale of liquor. This warrant was
based upon an allegation by Nick Takush that he believed liquor was
unlawfully possessed in such place, and that he based his belief upon
the fact that he had on several occasions purchased whiskey at that
address for beverage purposes, and on the 30th day of September, 1921,
had purchased two gallons of alcohol there for beverage purposes.
Acting under this warrant, the sheriff, through under-sheriff Alfred C.
Walker, returned the body of Luigi Caprio, admittedly the owner of said
7 Bloomfield Avenue and of the drug store, cellar and rooms attached.
The said under-sheriff also filed an inventory showing that he had
seized under said search warrant a two gallon can labeled, "Columbia
Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled
"Columbia Spirits;" some liquor permits; one five gallon can, full,
labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one
bottle labeled "Alcohol."
Application is now made under sections 63 and 64 of the Prohibition
Enforcement Act to restore the liquor and property so taken, on the
ground that there was no probable cause for believing the existence of
the grounds on which the search warrant was issued, and on the further
ground that the liquor and chattels taken upon such search warrant are
not the same as referred to in the search warrant.
There is absolutely nothing in the testimony taken before me to support
the contention that there was no probable cause for believing the
existence of the grounds upon which the search warrant was issued, but
there is some merit in the other contention.
The search warrant directs the taking by the sheriff of "liquor found in
and upon the premises aforesaid, together with any and all vehicles,
fixtures, containers, utensils, machines, contrivance, or paraphernalia
whatsoever found, used or intended to be used in the illegal keeping or
sale of liquor." It will be readily seen that the sheriff would only be
justified in his seizure of the liquor permits if they came within the
description "paraphernalia," and clearly the word "paraphernalia" cannot
be interpreted, particularly in the light of the words which precede it
in the search warrant, to cover liquor permits. The testimony also
showed that the five gallon can labeled "Columbia Spirits" was delivered
by a drug concern to Caprio while the sheriff's men were there or about
the time they arrived. Certainly this liquor is not the liquor referred
to in the search warrant, and consequently, not being the liquor
referred to in the search warrant, it must be restored to the person
from whom it was taken.
Therefore an order may be presented, reciting that, so far as the
Prohibition Enforcement Act is concerned, the search warrant issued by
virtue of the authority thereof is not sufficient to justify the sheriff
in retaining the liquor permits and five gallon can labeled "Columbia
Spirits," and that in view of the Prohibition Enforcement Act the said
liquor permits and "Columbia Spirits" be restored to said Caprio.
HARSEL v. FICHTER & ENGELHARDT.
(Essex Common Pleas, Dec. 27, 1921).
_Workmen's Compensation Acts in New Jersey and New York--Applying to
Wrong Tribunal--Election of Tribunal._
Case of Julia Harsel, Petitioner, against William Fichter and John
Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On
petition for compensation under Workmen's Compensation Act.
Messrs. Kent & Kent for Petitioner.
Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent.
STICKEL, JR., J.: The employers contend that the petition for
compensation in this case should be dismissed because the contract of
employment was made in New York, and because the petitioner elected to
proceed under the compensation law of New York, subsequently petitioning
for compensation under the New Jersey law.
In considering the case, I felt I would be aided if I had before me the
testimony taken in the New York compensation action, and counsel for the
defendant very kindly supplied me therewith.
From such testimony, which I have filed in this case, as well as from
the deposition filed, I am satisfied and find as a fact that the
deceased was hired in New Jersey by Fichter & Engelhardt. It is quite
clear to me that the deceased heard of the New Jersey job of Fichter &
Engelhardt at the Union rooms in New York and that, being attracted
thereby, he, after giving up the New York job, came to the New Jersey
job, was seen by the foreman, Millhouse, and employed on the spot.
Engelhardt appears to be a silent partner of Fichter, according to his
own testimony, and the firm is, in fact, made up as stated in the title
to this cause.
Furthermore, even though the contract of employment had been made in New
York, the accident causing the deceased's death having taken place in
New Jersey, the case falls within the New Jersey Compensation Act, and
this notwithstanding the existence of a New York Compensation Act.
American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L.
314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L.
688 (at this time the New York Compensation Act was in force); West
Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J.
L. 102.
As to the question of election, the contention of the employers is
wholly without merit. The petitioner, through attorneys other than those
who now represent her, applied for compensation under the New York
Compensation Act. The Commission held that it had no jurisdiction; that
the case was not within the New York jurisdiction, apparently, from the
testimony taken, because the Commission found that the contract of
employment with petitioner was made in New Jersey and the accident took
place there. Thereupon petitioner applied for compensation in New
Jersey, and an informal award had been made in New Jersey, and a day
fixed to hear the case on the formal petition, before someone in New
York claiming to represent Mrs. Hassel, the petitioner, had applied for
a reopening of the finding of no jurisdiction by the New York
Commission.
Petitioner in that posture of affairs advised the New York Commission of
the New Jersey proceeding, and asked that the New York proceeding be
stayed "pending the trial of her case in New Jersey, and then after and
when we receive compensation over there, as I understand the law in this
State, Mrs. Hassel can still come in and get the deficiency claim from
the Compensation Bureau here," and this request was duly granted.
What acts of petitioner constitute the election which should bar this
New Jersey proceeding? Certainly not the original application for
compensation in New York, for that application was dismissed, and it now
appears erroneously, for lack of jurisdiction, and, under such
circumstances, it is clear that she has not made a final and binding
election such as would preclude her applying to the tribunal in fact
possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus
Juris, p. 37, and cases cited.
If a mistake of a petitioner in applying to the wrong tribunal for
relief would not preclude application to the right tribunal (see 15
Cyc., supra) certainly the erroneous finding of no jurisdiction by the
tribunal applied to could not have a greater and more binding effect
upon the petitioner. And even a correct finding of no jurisdiction would
not preclude application for relief to the tribunal possessing
jurisdiction. 20 Corpus Juris, p. 27.
The only other conduct of petitioner which is relied upon to constitute
an election is her request to the New York Commission after someone
unauthorizedly had applied for a re-opening of the case, and after the
institution of the New Jersey suit to stay the New York proceedings
until the completion of the New Jersey proceeding, so that petitioner
might obtain in New York the difference between the New York
compensation allowance and that of New Jersey, and clearly such conduct,
which is, in effect, an election to proceed in New Jersey on the main
case, cannot be held to constitute an election to proceed in New York.
I, therefore, find that the petitioner is entitled to compensation for
three hundred weeks at the rate of twelve dollars per week, and to one
hundred dollars, the statutory allowance for funeral expenses, and I
will allow counsel for the petitioner a counsel fee for services in this
Court of two hundred and fifty dollars.
A determination of facts should be prepared by counsel for the
petitioner, submitted to counsel for defendant for inspection, and then
transmitted to me for signature.
STATE v. ASH.
(Essex Common Pleas Jan. 6, 1922).
_Driving Automobiles Under Influence of Liquor--Review of Evidence
Below._
Case of State of New Jersey against Joseph A. Ash. On appeal from Third
Criminal Court of Newark.
Mr. John P. Manning for State.
Mr. Andrew Van Blarcom for Defendant.
STICKEL, JR., J.: The defendant-appellant was found guilty in the Third
Criminal Court in the City of Newark, Judge Horace C. Grice presiding,
for driving an automobile while under the influence of liquor, in
violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to
the Disorderly Person Act, and he now appeals to this Court.
The first point urged as a ground for reversal of the conviction is that
"at the close of the case there was a reasonable doubt as to the
applicant's guilt; that the State had not sustained the burden of proof,
and that the weight of the evidence favored the appellant."
It is to be doubted whether this Court has any power to review the
evidence at all, in view of the Laws of 1895, Page 197, section 7, 3
Comp. Stat., p. 3993, providing: "That it shall not be necessary to set
forth in said conviction [convictions in Police Courts of first-class
cities] the whole or any part of the testimony upon which such
convictions is had," but, assuming it possesses such power, it cannot
extend beyond the point of determining whether there was any evidence
before the trial Court to support its finding. See Sec. 39, Laws of
1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L.
Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell,
71 N. J. L. 418. No power to weigh the evidence rests in this Court,
and, if it did, I would be unwilling to say, after a reading of the
evidence in this case, that the trial Court was wrong in its conclusion
of facts; that it should have disregarded the officer's testimony and
that of Doctor Mitchell, and believe the story of the defendant and his
friend; or even that the Court must have or should have entertained a
reasonable doubt of the defendant's guilt on the whole case. The trial
Court saw the witnesses, had the benefit of the atmosphere of the trial,
witnessed the demeanor of the witnesses on the stand, their manner of
testifying, and, consequently, was in a better position to determine
questions of fact than this Court is, relying, as it must, upon a paper
record.
There was ample evidence, if believed, to support the charge. The police
officer testified that he saw the defendant driving the car, smelled
alcohol on his breath, took him to Doctor Mitchell, the police surgeon,
to whom the defendant admitted that he had been drinking, and who found
him under the influence of liquor, and on the stand the defendant told
of having had two drinks of whiskey.
The point stressed--that the police officer's claimed identification of
the defendant as the driver on South Orange Avenue is so improbable and
impossible as to make his whole story increditable incredible and
unbelievable--presents a question of fact and argument peculiarly the
province of the trial Court, but, in any event, the fair intendment from
his testimony, it seems to me, is that either because of the speed of
the auto in question, or because of the auto chasing the car in
question, with the occupant waving his hand to the officer, he was
attracted to the automobile in question, caught a glimpse of the driver,
turned around, followed the car, ordered it to stop, saw the defendant
while thus endeavoring to bring the car to a stand-still, and then saw
him step out of the car and away from the driver's seat.
The next point urged is that the Court erred in sustaining an objection
to this question addressed to Officer Moffatt by counsel for the
defendant: "How many conferences have you had about this case this
morning with Captain McRell, or Doctor Mitchell?" After this question
was asked the Court said: "Is that material?" "Mr. Manning: I do not see
that this is material. We have a right to prepare our case. I object."
The Court: "Objection sustained. I think you [counsel for the defendant]
probably talked about your case with your client." No objection was made
to the Court's ruling by counsel for the defendant, no exception taken
thereto, and no effort made to point out the materiality or relevancy of
the question, or that it was but the foundation for some legitimate
attack upon the credibility of the witness. In that posture of affairs
the overruling of the question was in the discretion of the Court and
was harmless. State v. Panelli (N. J.) 79 Atl. 1064.
The third and last ground urged for reversal is the action of the Court
in permitting Doctor Mitchell to answer the following question over
objection of counsel for defendant and exception duly taken: "And, in
your opinion, would you say his condition to be such as to prevent his
driving a car?"
Assuming the action of the Court constituted legal error, it could not
prejudice the defendant, for the State was not required to prove that
the defendant was so far under the influence of liquor that he could not
safely drive a car, but merely to prove that he drove the car while
"under the influence of intoxicating liquor." This is clearly pointed
out by Justice Trenchard in State v. Rodgers, 102 Atl. 433 (at p. 435),
where the Justice says: "It will be noticed that it is not essential to
the existence of the statutory offense that the driver of the automobile
should be so intoxicated that he cannot safely drive a car. The
expression 'under the influence of intoxicating liquor,' covers only all
the well known and easily recognized conditions and degrees of
intoxication, but any abnormal mental or physical condition which is the
result of indulging in any degree in intoxicating liquors, and which
tends to deprive him of that clearness of intellect and control of
himself which he would otherwise possess." The State, prior to the
propounding of the said question, had submitted testimony showing or
designed to show that the defendant had driven the car while "under the
influence of intoxicating liquor," and Doctor Mitchell had already
testified that when he examined him he found him under the influence of
intoxicating liquor.
No legal error being shown or appearing in the record, the conviction is
therefore affirmed.