Part 10

Let every master be responsible for his own negligence, but let the line be drawn short of making every master--every employer of another--the insurer of the safety of his servant to the extent of rendering the master liable for injuries resulting from no fault of his own but from the carelessness and negligence of the servant himself or of a fellow-servant.

An interesting example of the operation of a statute in connection with established rules of law will be found in the case of Knisley _vs._ Pratt.[51] The legislature had prescribed certain devices for the protection of women and children, including a provision that cogs on machinery should be properly guarded. In enacting this provision, as the courts were bound to assume by the settled rules of construction, the legislature was fully aware of the existing law in the state of New York in regard to the assumption of obvious and ordinary risks of employment by men and women of full age and capacity. The plaintiff in the Knisley case was a woman of full age and capacity, and she was well aware of the danger she was running in approaching too near machinery in operation. Had the statute been competently drawn, it would have provided--_assuming, of course, the draftsman and the legislature so intended_--that the rule of assumption of risk should not apply to cases within its purview; in other words, it would have provided that the master should be liable for any injury to a servant arising from the master's neglect to furnish the protection required by the statute whether or not the servant knew of such neglect or contributed in any way to his own injury. No provision of state or federal constitution prevented the legislature from enacting that the employer should be absolutely liable for the consequence of his own deliberate neglect to obey a statutory provision intended to protect human life and particularly the lives of women and children. There is not the remotest intimation by the court in the Knisley case that the legislature could not so alter the law. After the decision in that case had been announced, a change in the law could have been readily made within a week, for the legislature was then in session--February, 1896. Yet seventeen years have passed without such an enactment, and in the meantime the Court of Appeals has been assailed before the whole country for its lack of sympathy with the poor and helpless and with social progress as evidenced among other things by this decision!

It is true that the doctrine of the Knisley case has been recently overruled by the Court of Appeals in the case of Fitzwater _vs._ Warren.[52] But many lawyers believe that the court might better have left this change to the legislature, which could have made it seventeen years ago if it had so desired, and not have furnished additional ground for the criticism that our courts are resorting to judicial legislation. Despite the Fitzwater case, it would still be wise for the legislature, _if it deems that the rule of law should be as now announced_, to enact a properly drawn statute declaring that whenever a statutory provision requires a master to supply guards or other protection for his servants in hazardous employments or in connection with the use of dangerous machinery, his neglect to do so shall render him liable irrespective of the doctrines of assumption of risk, fellow-servant's fault, or contributory negligence.

The manner in which nominations have been made in recent years for judicial office and particularly for the Court of Appeals has also invited very serious criticism on the part of our correspondents.

As is well known, the bar of the state of New York, with almost entire unanimity, has been endeavoring for many years to separate nominations for judicial office from other nominations, and thereby to divorce the bench from politics. It was the bar that has urged and forced the renomination of judges for the Court of Appeals on a non-partisan basis. It was the bar that urged and forced the renomination and election of Judge Gray and Chief Judge Cullen and other members of our highest court. It is simply slanderous to charge that any of the present judges of that great court were nominated at the request or dictation of what our correspondents call "the interests." The contrary is the truth; and the whole history and conduct of the court refute an accusation which is as contemptible as it is unfounded.

The bar of the state was practically unanimous in urging the passage last year of the measure known as the Judicial Candidates Bill, which proposed that the names of judicial candidates should no longer be printed in the party column on the general and official ballot, but on a separate ballot, or in a separate column of the voting machines, without party designation in either case, to the end that candidates for judicial office might be voted for as individuals and not as members or candidates of any political party. There was then an excellent opportunity for the professed social reformers and labor leaders who are so vehemently assailing our judicial system to aid in a movement to eliminate from politics the election of judges. But it was not availed of. The bill was defeated. It had little support from the press and very little, if any, support from social reformers or the representatives of labor. It will undoubtedly be introduced again this year; it has been once more approved by the Association of the Bar of the City of New York, and it will probably be again approved by the state association and by the bar of the state at large. Let the labor organizations now assist and cooperate in procuring the enactment of this law, and help to secure the election of judges on their own merits and personal character apart from considerations of political service or the favor or support of political leaders or bosses, or of any particular class.

A few years ago in the city of New York an earnest attempt was made by the bar to secure the election of justices of the Supreme Court on a non-partisan and non-political basis. A committee of members of the bar nominated lawyers of the highest standing in their profession, of recognized ability and learning and of unimpeachable character. These nominees were defeated, and to that defeat the labor organizations greatly contributed. These organizations then gave no support whatever to the movement to secure a separation of the courts from politics, and they were quite indifferent to the nomination of men of the highest character and of the highest qualifications for judicial office.

The plain truth on this point may serve and be useful as an object lesson. The least competent and the least experienced of the justices of the Supreme Court in the county of New York and elsewhere throughout the state are generally those who have been nominated because they were endorsed by labor organizations or were supposed to be acceptable to them. Everywhere throughout the country it is said that whenever labor organizations dictate or control the nomination of judges, they select lawyers of inferior education and talents and not of superior character and independence. It is high time that this truth was well pondered by labor.

One of the real causes for the discontent with the administration of justice in our state courts, and particularly in the larger cities, is that judges are nominated and elected not because of their legal ability and personal character, but because of their party affiliations or their supposed friendship or sympathy for or inclination to favor one class as against another. If the personnel of our Court of Appeals and Appellate Divisions has thus far been kept uniformly high and pure, it is because of the constant efforts of the bar. If labor organizations and the people at large will now cooperate with the bar, who in this matter are the proper leaders of public opinion, there will be infinitely less occasion for complaints of delay or incompetency or partiality in the administration of justice. The multiplication of incompetent judges means the multiplication of the causes of delay, new trials, denial or miscarriage of justice, expense, discontent and suspicion. The cure for these evils is with the people themselves, and it will be brought about only when they shall insist upon the nomination and election of lawyers of learning, character and independence.

It must be plain to all who have studied the facts and reflected upon existing tendencies that during the past twenty years the amendments to the laws regulating nomination and election to public office have served to strengthen and perpetuate the control of political leaders and political machines. Many bills introduced and loudly acclaimed as reforms have in truth proved to be not reforms at all, but steps in the dark and backward.

Some of our correspondents blame the courts for the "law's delay," yet there is no defect in our system for which competent judges are less responsible. In most instances of delay in civil cases, the blame belongs to the lawyers. Nothing has done more to bring the administration of justice into disrepute than the practice of adjourning cases term after term and year after year on excuses which sometimes are not well founded. There need be no unreasonable delay even in the city of New York, and would not be, if lawyers were ready to try their cases when they are first reached on the calendars. The judges are constantly complaining of the dilatoriness of the bar. Another cause of delay is the practice of bringing suits and taking appeals for the purpose of coercing settlements. A higher sense of professional responsibility ought to be cultivated, and there should be some severe penalty or professional ostracism for lawyers who abuse the process of the courts of justice and disregard the ethics of their profession.

In like manner, in criminal cases the real cause of delay in nearly every case is the failure or inability of prosecuting officers to press their cases diligently; and the frequent change in the personnel of our officeholders is likewise a cause of much delay. Whenever one official succeeds another, the period during which the new incumbent is learning what occurred before he came into office and familiarizing himself with the pending cases is so much time lost. Greater permanency in the tenure of office of prosecuting officers would probably conduce to greater speed and greater efficiency in the enforcement of the law. Nor can it be doubted that many public officials and their assistants do not feel the same degree of responsibility for the prompt dispatch of public business that they would feel if representing private clients. The remarks of Mr. Justice Scott in the recent case of People _vs._ Turley are indeed timely, and should be commended to the attention of all prosecuting officers throughout the state. He used the following language: "There is much well-justified complaint at the present time of the slowness with which the criminal law is enforced, and especially of the great length of time which is frequently permitted to elapse between a conviction and the review of the conviction by the appellate courts. Among persons not conversant with the rules of criminal procedure, the courts are not unnaturally, but most unjustly, charged with a large share of responsibility for this condition. The blame rests elsewhere. The appellate courts are powerless to act until the appeal is brought before them by those charged with that duty. When the matter is brought up for a hearing, the delay is ended, and the appeal is invariably promptly decided. The present is a particularly flagrant case. The defendant was convicted in March, 1909, and was almost immediately released on bail pending an appeal, under a certificate of reasonable doubt. The record is not voluminous, and the questions of law involved are neither difficult nor intricate, and yet the defendant has been at large for three years and a half before the appeal is brought on for argument. Of course under such circumstances the defendant was quite satisfied and was in no haste to have his appeal argued. The duty to bring it on promptly rested, as it rests in every case, upon the district attorney, who had it in his power at any time to force a hearing of the appeal by moving to dismiss it. This court has never shown itself to be unwilling to support and cooperate with the district attorney in compelling appeals in criminal cases to be argued with all reasonable promptness. The remedy for unreasonable delays in the final disposition of criminal appeals lies in his hands."[53]

A number of important murder cases will be readily recalled where years have elapsed between the conviction of the accused and the argument in the Court of Appeals. Not only does this unnecessary delay deprive the judgment of conviction of much of its effect as an example and deterrent precedent, but in cases of reversal and new trials evidence is sometimes lost, and the guilty thus escape. In the latest reported murder case from New York county, People _vs._ Lustig,[54] the defendant was convicted of murder in the first degree in June, 1910, but the appeal was not brought on for hearing in the Court of Appeals until June 14, 1912, when it was decided and reversed within two weeks after the argument, viz., on June 29, 1912. In the meantime, as we are informed, material witnesses had disappeared, and the defendant is now at large on his own recognizance, and probably will not be tried again!

Another case of apparently inexcusable delay is People _vs._ Koerner.[55] The crime of murder was committed in September, 1896. The defendant was indicted within a month thereafter, and was convicted of murder in the first degree on March 1, 1897. The appeal was argued in the Court of Appeals within four court months, on October 22, 1897, and the judgment was reversed on November 23, 1897. The case was then re-tried, and resulted in a judgment of guilty of murder in the second degree on March 15, 1898. The records of the courts show that the appeal from this judgment was not brought on for argument in the Appellate Division until December 12, 1906, and then resulted in an affirmance by that court on January 11, 1907, and that the appeal was not argued in the Court of Appeals until February 19, 1908, when the judgment was affirmed without opinion in less than three weeks!

Yet for the delays in these and similar cases the courts are criticized and their administration of criminal justice intemperately assailed by the press and other critics, notwithstanding the diligence of the judges in disposing of appeals when duly presented for their consideration.

It may be true that the pressure of innumerable cases compels the district attorney in New York county to delay the argument of appeals; but the remedy is to provide him with additional competent assistants and certainly not to indulge in indiscriminate criticism or unfounded abuse of the courts, or to resort to panaceas of reform in criminal procedure, which too often only multiply technicalities, deprive the individual of necessary protection, and create more or less confusion.

I shall now ask attention to the subject of injunctions in connection with strikes. I shall not argue the proposition that strikers in industrial controversies, or labor and labor organizations should not be above the law, or a law unto themselves. I assume that this is still a self-evident proposition in this state and may still be taken for granted. History certainly teaches us that in a free country no class can safely be released from the duty of obeying the laws, and that if disobedience be permitted in favor of the laboring classes, the industrious, honest and law-abiding laborer will be the worst sufferer in the long run. Nor will time be taken to point out that no civilized community can long permit any class to maim, or murder, or destroy property, or violently prevent others from earning their living, in order to coerce compliance with the demands of that class.

There would, of course, never be occasion for the use of injunctions in labor disputes if there were no threats of violence and no danger of injury to persons or property. If the labor organizations of this country will now earnestly, effectively and sincerely cooperate with the bar in the endeavor to put an end to violence and riots, which are the unfortunate but apparently inevitable attendants of every protracted modern strike, there will no longer be any occasion for condemning the courts on account of the issuance of injunctions, for there will then be no necessity for injunctions.

One aspect of the injunction problem is emphasized in the correspondence now submitted, and should be dealt with here. It is the matter of giving notice to the defendants before an injunction order is granted. Recently, when the United States Supreme Court adopted its new rules, including one as to injunctions, Mr. Gompers and other labor leaders loudly proclaimed that they had secured a great victory. Thus, Mr. Gompers is reported in the "Literary Digest" of November 16, 1912, as calling the new rule a reform and "a step in the right direction, and one of the things labor has long been fighting for." But, as every one familiar with the subject well knows, there is nothing in the new rules that materially changes the pre-existing practice in regard to injunctions. The authoritative treatises on federal equity procedure by Mr. Foster and Mr. Street conclusively show this. No case has been cited to us and we have found none where the defendants enjoined were not granted by the courts as much facility in moving to dissolve or modify injunction orders as is provided for in the new rule. The learned and impartial editor of the "New York Law Journal" well said in the issue of December 11, 1912: "The only portion of the new procedure which has attracted the attention of the daily press is the rule regarding preliminary injunctions. This, however, is no more than an adoption of good New York practice, and, indeed, of good equity practice everywhere, viz.: that no _ex parte_ injunction shall go out except as a stay-order to show cause why a preliminary injunction should not issue."

The case most often cited by labor leaders is known as the Debs case growing out of the Pullman strike at Chicago in 1894. If any fair-minded critic of the courts will take the trouble to read the unanimous, patriotic and inspiring opinion of the Supreme Court of the United States in the Debs case,[56] or what ex-President Cleveland wrote on the subject in his book on "Presidential Problems," published in 1904, he will at once realize that the issuance of the injunction order and the subsequent punishment of Debs and his associates for deliberately and defiantly disobeying it were both proper and necessary.

For nearly twenty years and since the Debs case in 1894-1895, the labor leaders, agitators and demagogues of the country have been assailing the courts and denouncing "government by injunction" on the pretense, among others, that the judges denied the defendants in that case any opportunity to be heard, when as a matter of fact, they had the fullest notice and opportunity to be heard, but deliberately elected to disobey and defy the court. Indeed, in no jurisdiction is it true that a defendant is denied the right to a hearing upon the matter of an injunction against him, and the sub-committee has been unable to learn of a single case in which a judge has refused to give the defendant a hearing either upon an application to grant or continue an injunction, or to set one aside. A permanent injunction order is never granted without notice to those affected and an opportunity to be heard; nor is even a temporary restraining order issued without notice of hearing unless the danger of irreparable injury from delay be very grave, and then the order is made returnable at the earliest practicable date, so as to afford the defendants an opportunity to be promptly heard. If a temporary restraining order should be granted improvidently on insufficient papers and upon an _ex parte_ application, it is well known that the order may be and frequently is vacated immediately on the _ex parte_ application of the defendants. Most lawyers are familiar with such cases. The fact is that laboring men have always been afforded a hearing and a day in court in connection with injunction orders, and that no man has ever been punished for contempt by an American court without due notice to him and full opportunity to present his excuse or defense. Indeed, were any man punished without notice and opportunity to be heard, the order for his punishment would be without jurisdiction and utterly void.

I may add that the lawless and violent among the members of labor organizations will not in the end gain any real liberty or advantage for the laboring classes, even if they succeed in abolishing the writ of injunction in labor disputes and with it the power of the courts to punish disobedience as a contempt of court. Destruction of property and assaults upon peaceful workingmen cannot permanently be tolerated in any civilized community. Sooner or later, the government must afford protection in one form or another; otherwise chaos, anarchy and barbarism are inevitable. If injunctions cannot be issued to restrain the violent and protect the property of the innocent and law-abiding citizen, simply because he is an employer or property owner, then resort will finally have to be had to the club of the policeman or the bayonet of the militiaman or regular. It is no use blinking this certainty. That was plainly the alternative presented by the Pullman strike; and President Cleveland then wisely preferred the orderly and peaceful procedure of a court of justice to the police power of the army. Under military rule, the laboring man may receive no hearing at all, and martial law with its arbitrary practices and despotic power will have to be substituted for the regular procedure of impartial courts of justice acting upon full notice to all affected and affording full opportunity to be heard.

The New York Code of Civil Procedure in sections 602-630 has long protected the rights of a striker as adequately as any other system of procedure, state or federal, domestic or foreign, and even better than the recent rule of the United States Supreme Court, which some labor leaders are acclaiming as a boon. Lest we forget, it may be useful to recall the exact language of section 626, which has been the statutory law since 1895. It is as follows: "Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge or justice who granted the order, or who held the term of the court where it was granted; or to a term of the appellate division of the supreme court. It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect."