EDITORIAL NOTES.

HAPPILY IT IS not such a frequent occurrence as may be supposed that the

Judges of our Court of Errors and Appeals split apart so curiously as

they did in determining that the Van Ness Enforcement Act should be

declared unconstitutional. The result only shows that, like the doctors,

Judges cannot all think alike. On the subject of whether whiskey is

useful as a medicine or not our New Jersey doctors, on a canvass, split,

520 to 308, or 490 to 319, according as one interprets the replies. In

the Nation at large it ran 51 per cent. to 49 per cent., a closer

margin. But only half of those who were interrogated by the "Journal of

the American Medical Association" responded; what the rest thought we do

not know. So on the legal questions involved in the Van Ness Act,

counting those Judges who approved the Act as constitutional in the

Supreme Court, the difference between a yea and nay vote appears to have

been only one. On the subject of whether the Act could be sustained

because it took away from defendants the right of trial by jury, which

was the great burden in objections made by defendants themselves, the

Court held what this Journal has held, that the Legislature had the

power to direct that trials might be by magistrates without a jury. It

had done so over and over again in other matters and could do so in

liquor legislation as well. On other points there were various

differences of opinion. However, since the Act as a whole is declared

unconstitutional, on the ground that it does not conform to the Federal

Act, which declares that the illegal possession, sale, etc., of liquors

constitute a crime, instead of disorderliness, the Legislature has

passed new statutes which alter the basis of a conviction from a

disorderly proceeding to a criminal proceeding. There is no hope in this

for bootleggers, except as it permits them to escape by jury

disagreements or "not guilty" verdicts. If no law were enacted the

Federal Courts would be filled with cases, and the results there would

give no hope to criminals. Generally speaking, the upsetting of the Van

Ness Act is unfortunate, because jury trials are expensive as well as

uncertain; trials before Judges as magistrates are more certain and far

less expensive. In the end, however, bootleggers will not win in the

game.

* * * * *

On the question of the legality of "picketing" by strikes the Court of

Errors and Appeals of this State also held quite divergent views, but

sustained the Keuffel & Esser injunction granted by Vice-Chancellor

Buchanan against the International Association of Machinists. The

majority decision of the Court was rendered on Jan. 26th, in an opinion

by Mr. Justice Swayze. His finding was sustained by 9 affirmative and 5

negative votes. Besides Justice Swayze, the members of the Court voting

to affirm were Justices Parker, Bergen, Kalisch and Katzenbach, and

Judges White, Williams, Gardner and Ackerson. Voting to reverse were

Chief Justice Gummere, Justices Trenchard, Minturn and Black and Judge

Van Buskirk. "The object of the appeal avowedly is," said Justice

Swayze, "to secure a decision as to the legality of picketing when

unaccompanied with violence, molestation of others, annoying language or

conduct--in short, what is sometimes called peaceful picketing. Parading

in the neighborhood of complainants with placards indicating that a

strike is in progress is similar in its legal character to picketing."

He then pointed out that the Court is bound in a measure by the recent

decision of the Supreme Court of the United States in the case of the

American Steel Foundries v. The Tri-City Central Trades Council, in

which Chief Justice Taft wrote an opinion upon the rights of strikers,

both at common law and as governed by the Clayton act. Taking the

Federal decision as a foundation, Justice Swayze said it held the

employer had the right to the access of his employés to his place of

business and of egress therefrom, without intimidation or obstruction;

and the employés, recent or expectant, had the right to use peaceable

and lawful means to induce present employés and would-be employés to

join their ranks. He remarked that the legality of any particular

conduct depends on the facts of the particular case and that picketing

may or may not be lawful, as it has or has not an immediate tendency to

intimidate the other party to the controversy. Remarking that picketing

is illegal if it has an immediate tendency to obstruct free passage such

as the streets afford, consistent with the rights of others to enjoy the

same privilege, Justice Swayze continued:

"Thus men may accost one another with a view of influencing action, but

may not resort to persistence, importunity, following and dogging. The

number of pickets may of itself make the picketing unlawful, since it

may amount to intimidation. Everyone knows that threats of bodily harm

may be made by a mere show of force, without violence of language or

breach of the peace, and that mere numbers may intimidate. The real

question is, 'Does the conduct under existing facts amount to

intimidation?' Twenty-five or fifty pickets may, when a single picket

probably would not. If information alone were wanted in the pending

case, all the information necessary for the defendants to enable them to

prosecute their efforts to convert the complainants employés would have

been obtained by a few men. The use of twenty-five or fifty or two

hundred, as in fact used, was clearly unnecessary, and could not have

been intended for any lawful purpose. In view of the testimony as to

what actually went on, the Vice-Chancellor properly held that the

conduct of the defendants was an illegal interference with the

complainants' property rights."

* * * * *

The opinion noted above is, in the whole, a lengthy one. Judge White

concurred in it in a separate opinion. Justice Minturn filed a strong

dissenting view, taking the ground that the Court's conclusion served to

mark another step in the cycle of judicial legislation, which, beginning

with an appropriate effort to curb agitation of a forcible character,

has concluded with an edict which will be construed to put an end to

peaceable and constitutional economic agitation. "Nothing further," he

said, "would seem to be necessary to complete the chaplet of judicial

legislation, unless it be the invocation of the provisions of the

statute of laborers (Edward III.), under the provisions of which the

laborer was effectually conscripted to the service of the master, and to

that end was hounded as a helot, and labeled with the brand of Cain. In

every other walk of life the peaceful activities condemned by these

adjudications are quiescently tolerated, if not approving recognized."

* * * * *

The cash bonus asked--not asked but demanded in formal resolutions--by

various of the associations of the American Legion throughout the

country, and which has given the present Congress and the President more

concern than almost any domestic subject, has not struck a responsive

chord in the popular ear except from the soldiers--a minority of them,

as we believe--who want it. Every business man knows it is not the time

to pension well soldiers of the late war further than the States are

doing it. We have always doubted that the best officers and soldiers of

the country were behind the movement. It is to belittle their patriotism

to believe that they desire to foist billions of taxes, direct or

indirect, upon their country at the present moment.

* * * * *

When Senator Edge told an assembly at Atlantic City recently that the

Senate of the United States, of which he is a member, failed alarmingly

in performing its proper duties in a speedy and efficient manner, he

only stated what public opinion has long held. The mere fact, to which

he did not allude however, that a few men can talk any good project

before that body to death, the Senate rules permitting unlimited debate,

has served again and again to prove the truth of his statements. The

House of Representatives, with its too-many members, is far more

reflective of public sentiment than the Senate, and actually does its

work more expeditiously when a majority of members desire quick action.

A reform in the Senate is of such importance that too much public

attention to its improper methods of carrying on public business cannot

be given. The press of the country should be a unit in demanding a

change in methods and results. The New York "Times" thinks the trouble

is largely due to the fact that there is a dearth of strong men in the

Senate; that there is no great inducement for a strong man to go to the

Senate as a new member, because he is practically "frozen out" of any

good committee assignment for a long period of time. It says of a new

member:

"What will happen to him when he takes his seat in the Senate? He will

get only insignificant committee appointments. He will be expected to be

silent for at least six months. If he undertakes, as a new Senator, to

impress upon the Senate any positive convictions of his own, he will be

'hazed' like a college freshman in the effort to teach him his place. If

there is in the Senate a 'career open to talent,' it is open only after

long waiting. In short, the Senate that now professes an anxiety for the

accession of strong men itself puts formidable obstacles in the way of a

strong man. Its rules, as Senator Wadsworth has just been lamenting,

make it almost impossible to transact business. Its time is mostly taken

up by querulous and ineffective members. Its committees are manned by

the rule of seniority, which too often spells senility. Indeed, about

the only way in which the Senate as it is at present can be said to be a

nursery of political strength is in accordance with the maxim, Suffer

and be strong. A Senator who can survive for a few years the suffering,

mental and moral, which he has to undergo in the Senate, may emerge into

power and influence. But upon the strong man just arrived the Senate

always puts a damper."

Lots of truth in this. Nevertheless, present Senate rules combined with

too much politics and too little statesmanship and business activity are

responsible for a deterioration of the public esteem for our highest

governing body.

* * * * *

Dean Stone of the Columbia University Law School of New York City in a

report to the President of that Institution made recently sounds a

proper warning as to the quality and numbers of young men crowding into

the Bars of many of the States. Among other things he said:

"It may well be doubted whether there is any profession which makes

greater demands than the law on the capacity of its members for

sustained intellectual efforts, their powers of discrimination and their

ability to master detail. Yet, as I have often had occasion to point out

in these reports, increasing numbers of men of mediocre ability and

inadequate preliminary education are being attracted to the law by the

ever-increasing facilities for law study. What, under the conditions of

law study and admission to the Bar of a generation ago, was a task of

magnitude testing the patience, stability, character and intellectual

power of the prospective lawyer to the utmost may now be performed with

relative ease. This is partly attributable to the multiplication of

opportunities for law and study nicely adapted to the peculiar type of

Bar examination prevailing in most of our States, and partly because Law

Schools and Bar examinations too often place the interests of the

individual law student and sometimes their own interests ahead of the

interests of the profession. It is the duty of Law Schools to dissuade

the man of ordinary ability and meagre education from beginning law

study, and, if he will not be dissuaded, to apply to him standards of

proficiency and attainment worthy of the profession to whose membership

he aspires."

* * * * *

The Washington Conference is over and the results are more than

gratifying. Only the blindest obtuseness on the part of the United

States Senate has prevented early ratification of the various treaties

made by it. The great point gained by this Conference is that it brought

Great Britain, France, Japan, China and five other powers face to face

in friendliest attitude, and this is what should happen again when

occasion calls for it. Every country represented is happy over the

result, and to say that America should be is a truism. It marked another

great event in world history.

* * * * *

Some day perhaps, every moving-picture theatre will have this

description of the art it employs on its front curtain, for is it not

the lucid description recently published in a magazine devoted to the

"sublime art" of motion-picture writing? And it will be good for school

boys and girls to interpret: "The photodramatist enters the great cosmic

drama in keeping with the Infinite Plan; he will be, in the expanse of

days to come, a master of new values in art, science, philosophy,

religion. From the fastnesses of the invisible world of Thought,

fulgurous forces of the very essence of Beauty are sweeping into his

consciousness, attracted by the human desire for more complete

expression."

The New Jersey Law Journal, Volume XLV, No. 3, March 1922 · 第 3 / 23 题