Part 9

The courts have repeatedly pointed out that the owners of property devoted to a public use are entitled to a fair and adequate judicial investigation if they contend that the rates or charges prescribed by a legislature are unreasonable and confiscatory. This is but recognizing that the owners of railroads and other property are entitled to a day in court, just as the humblest person is entitled to his day in court when his constitutional and vested property rights are invaded by the government. If the private property of the individual is to be taken for a public use, it would, of course, be obviously unfair and unjust to permit the legislature to say conclusively what should be paid to him, and deny him any adequate opportunity in the courts to review the legislative fiat. The same principle applies to public service corporations. They are entitled to appeal to the courts to pass upon the validity of any legislation which attempts to compel them to render services at a rate fixed by the legislature if they contend that such rate is unreasonably low and confiscatory; and, pending the judicial investigation, they ought not to incur the risk of accumulating and ruinous penalties. The New York Public Service Commissions Act of last year recognizes this in principle. But, instead of granting a fair hearing or providing for any judicial proceeding in which the reasonableness of the statutory rates may be promptly investigated, the constant effort seems to be to render resort to the courts so dangerous that property owners will abandon their right to a day in court rather than take the risks involved in allowing penalties to accrue and accumulate, which might subject their property to confiscation. Thus, in the recent New York gas statute, declared unconstitutional by the United States circuit court, no judicial investigation was afforded and the penalties imposed were at the rate of $1,000 for each overcharge or violation of the law. As the Consolidated Gas Company alone had upwards of 390,000 customers, an overcharge on only one month's bills, pending an attempt to test the law in good faith, would involve the fabulous total of $390,000,000 in penalties, or nearly five times the value of the whole property of the company. In fact, if the New York statute, at least in this respect, is not nullified by the Supreme Court on the pending appeal,[46] the Consolidated Gas Company may be absolutely ruined for having asserted its legal right to a fair judicial investigation before being compelled to accept what it insisted and what the court has so far held was a confiscatory and unreasonable rate; that is to say, for daring to insist upon a fair judicial hearing before being condemned. The Kansas statute regulating stockyards, which was declared unconstitutional by the Supreme Court,[47] imposed penalties which might have aggregated $15,000,000 in one day, or nearly twice the value of all the property of the stockyards company. The recent railroad statute in North Carolina imposes fines which would amount to $2,500,000 per day, and in a few days would bankrupt the railroad companies. The Minnesota railroad statute imposes penalties which in one month might aggregate several hundred million dollars.

Speaking of these penalties, United States Circuit Judge Lochren justly said: "There is no question but that such legislation is vicious, almost a disgrace to the civilization of the age, and a reproach upon the intelligence and sense of justice of any legislature which could enact provisions of that kind."

If any such policy of coercion and intimidation can possibly be enforced by the state or national governments, in any form or under any subterfuge whatever, we shall no longer be living under a constitutional government with effective guaranties of individual rights and liberties. If Congress or a state legislature can compel any class of persons to submit to an unconstitutional statute by imposing ruinous fines and penalties, or other provisions intended to operate _in terrorem_, or by threatening to deprive that class of the protection of the government, then the constitutional limitations imposed by the people can be readily circumvented and nullified, and our supposed rights and liberties will exist only in the grace or self-restraint of legislatures. One class is selected to-day, but another class will be selected to-morrow, depending only on the interest or prejudice or temptation or caprice of the temporary majority. Such an exercise of arbitrary and irresponsible power is in utter conflict with the whole theory of our institutions and in utter disregard and defiance of those fundamental and immutable principles of justice under which alone free governments can exist. As Chief Justice Marshall said in the great case of Marbury _vs._ Madison--and the court was then facing a hostile executive, a hostile Congress and a hostile public opinion--"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.... The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."[48]

Some of the bills now pending before Congress propose to deprive the federal courts of the power to issue preliminary injunctions in these cases. This would be a policy fraught with immeasurable danger to property interests as well as to personal liberty. It would frequently amount to a complete denial of justice. The delay of litigation might readily be attended by ruin. But, undoubtedly, some reform is called for. There can be no question that preliminary injunctions against the enforcement of state statutes regulating public service corporations should never be granted without prior notice to the representatives of the people, and full opportunity for them to be heard, and then only upon the clearest showing of threatened irreparable injury pending the delay of a full hearing on the merits. Such cases ought not only to be given the earliest possible hearing, but the courts should insist that both sides proceed with the utmost expedition in the taking of testimony. A hearing in open court and not before a master would greatly facilitate this result. The people are entitled to a speedy determination of the questions involved in order that they may promptly have the benefit of the statute if it be constitutional, or that they may at once amend it if it be unconstitutional. There is no reason why in the majority of cases such a suit should not be ready for final hearing and actually be heard within sixty days, or why it should not be finally disposed of in the appellate courts within less than a year. It should have preference on all calendars. The Expedition Act of Congress, applicable to cases arising under the Anti-Trust and Interstate Commerce laws, would furnish a good model for cases involving the validity of state laws.

The conditions which now confront the people in many states, where statutes regulating public service corporations are often tied up for years by litigation, tend to create discontent, impatience and dissatisfaction with the courts and to engender a desire for revolutionary change from an intolerable situation. Laws regulating public utilities are often essential for protection against those who otherwise would have the power to make a prey of the necessities of the people, and it is disgraceful that the enforcement of such laws can be delayed by litigation for years after their enactment. As the delays in our criminal procedure are crying for remedy, so the delays in this class of litigation are crying for immediate and effective relief. It is of paramount importance that the people should be convinced that they can obtain in the courts, and especially in the federal courts, a prompt determination of all litigation affecting the validity of legislation regulating public service corporations which they or their representatives have deemed necessary for their protection against extortion or oppression. In most cases, however, it will be found that the representatives of the state are as much to blame for the delays as are their adversaries.

But, above all other considerations, stands the necessity for maintaining the absolute confidence of the people at large in the wisdom and impartiality of the federal judges, who are so often called upon to determine the validity of state statutes alleged to conflict with the Constitution of the United States and in so doing to administer justice as between the state and the individual--as between the majority and the minority. It should be a matter of profound concern to us as lawyers to make all laymen appreciate that the exercise of this jurisdiction by the federal courts is necessary for the preservation and perpetuation of the Constitution, and that it is right and just that every citizen should have the privilege of appealing to the national courts for the protection of rights and liberties guaranteed to him by the national Constitution. Equally important is it that the people should appreciate that in entertaining suits to restrain the enforcement of state laws alleged to be unconstitutional, the federal judges are only performing their duty according to their oath of office, which in the noble language prescribed in 1789 pledges them "to administer justice without respect to persons," to "do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform" their duty "agreeably to the Constitution and laws of the United States." An examination of the cases in which injunctions have been granted against the enforcement of state laws must satisfy any candid mind that in the great majority of cases the power has been impartially exercised, with tact and wise discretion, and that such injunctions have been granted only when property rights seemed to be threatened with irreparable injury. It would be too much to expect infallibility in all these cases. But errors are corrected on appeal.

Assaults upon our judiciary and unwarranted and unjust criticism of our judges undermine the people's trust in the courts and threaten the whole structure of our civilization. The United States judges are justly sensitive to public opinion and distressed by unjust and ignorant criticism. They know how important it is that they should retain public confidence. They realize, as their opinions constantly show, that "next to doing right, the great object in the administration of public justice should be to give public satisfaction." But they cannot sacrifice truth to popularity, the Constitution to present expediency. Those who assail the federal judges should bear in mind that the founders in their wisdom constituted the judicial power our bulwark against unadvised, hasty and tyrannical action on the part of those in power and our shield against "those sudden and strong passions to which we are exposed," and which, if unchecked and unrestrained, may lead to ruin. However unpopular and disagreeable the task may be of setting aside an act of Congress or of a state legislature, however painful it must be to any just man to become the subject of calumny, a federal judge has no choice, no discretion, no will of his own, but must hear and decide according to his conscience every case submitted to him within the jurisdiction of his court as conferred and imposed by the Constitution and laws of the United States. Let us always bear in mind the lofty words of the great Chief Justice in the case of Aaron Burr, in the decision which excited so much public prejudice and clamor one hundred years ago, when, speaking of the duty of a judge, he said: "If he has no choice in the case; if there is no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[49]

FOOTNOTES:

[Footnote 23: Address before the New York State Bar Association at its thirty-first annual meeting held in New York, January 25, 1908.]

[Footnote 24: 2 Dallas' Reports, p. 419.]

[Footnote 25: 6 Wheaton's Reports, pp. 406-407.]

[Footnote 26: 134 United States Reports, pp. 1, 22.]

[Footnote 27: 108 United States Reports, p. 447.]

[Footnote 28: 200 United States Reports, pp. 283, 284.]

[Footnote 29: 1 Cranch's Reports, p. 163.]

[Footnote 30: 11 Wallace's Reports, p. 183.]

[Footnote 31: 16 Wallace's Reports, p. 156.]

[Footnote 32: 106 United States Reports, p. 205.]

[Footnote 33: 101 United States Reports, p. 343.]

[Footnote 34: The Law of the Constitution, 8th ed., p. 189.]

[Footnote 35: Reported by Hargrave, 19 Howell's State Trials, pp. 1030, 1073.]

[Footnote 36: 6 Best and Smith's Queen's Bench Reports (1865), p. 297.]

[Footnote 37: Reported in 14 Howell's State Trials, pp. 1-114.]

[Footnote 38: 188 United States Reports, p. 543.]

[Footnote 39: 114 United States Reports, p. 270.]

[Footnote 40: 9 Wheaton's Reports, p. 738.]

[Footnote 41: 16 Wallace's Reports, p. 220.]

[Footnote 42: In re Ayers, 123 United States Reports, p. 487.]

[Footnote 43: 123 United States Reports, p. 443.]

[Footnote 44: 172 United States Reports, p. 516.]

[Footnote 45: Ex parte Young (Attorney General of Minnesota), reported in 209 United States Reports, p. 123, and the case of Hunter (Sheriff of Buncombe County, N.C.) _vs._ Wood, 209 United States Reports, p. 205.]

[Footnote 46: Willcox _vs._ Consolidated Gas Co., 212 United States Reports, p. 19.]

[Footnote 47: Cotting _vs._ Kansas City Stock Yards Co., 183 United States Reports, p. 79.]

[Footnote 48: 1 Cranch's Reports, p. 163.]

[Footnote 49: 4 Cranch's Reports, Appendix, pp. 507-508.]

CRITICISM OF THE COURTS[50]

The attacks upon our courts which are constantly being published in the press throughout the country disclose a feeling of hostility towards the present system of administering justice that is probably the most portentous sign of our times. That the lawlessly inclined, who are fortunately still in the minority, should be hostile to those who are charged with the duty of enforcing and compelling obedience to the laws of the state or nation is not at all surprising and is perhaps almost inevitable in populous communities. But it is indeed surprising, and a legitimate cause for profound anxiety and misgiving, that thousands of honest, industrious, moral and law-abiding citizens should believe that the laws are not being impartially or justly administered, and that this erroneous belief should be inculcated, not only by the press and unprincipled demagogues and politicians but by reputable leaders of American labor and American public opinion, and even by educators. This belief has become so widespread and so fixed in the minds of vast numbers of our people of all classes, educated and uneducated, that only the most exhaustive consideration and discussion of the subject would be now adequate. Numerous letters received by the sub-committee of the New York State Bar Association, some of which are submitted with its report, show the intensity of the hostility towards the courts and the extent to which it is based upon ignorance, prejudice and malice. The fact that the writers of most of these letters are sincere need not be challenged, but, this being conceded, many of the statements show an utter failure to investigate the facts and an entire indifference to the truth, and some are obviously puerile, or inexcusably inaccurate and reckless. On the other hand, the spirit shown in letters from some of the labor leaders must inspire the hope of their loyal assistance in an impartial and thorough investigation. A great amount of good might be accomplished by cooperation with them. Such a letter, for example, as that recently received from Mr. Hugh Frayne, the general organizer of the American Federation of Labor, indicates that exchange of views might lead to desirable results. However irksome and laborious the task may be, it would be a great service to the country at large if some joint committee appointed by the New York State Bar Association and the other bar associations of the state would undertake to investigate all cases affecting labor or social legislation and publish a report showing the true facts and the principles of law involved in each case. The pity is that many of the critics of our courts are lamentably ignorant of the subjects about which they write or declaim, and--unconsciously and unintentionally in some instances--misrepresent and distort the facts.

It will be practicable at the present time to review only a few of the points suggested by the investigations of your sub-committee.

The subject of just compensation to employees for injuries received in the course of their work is one of the most important and far-reaching of those discussed by our correspondents, and its increasing difficulties and complexities call for much more study than we have been able to give it. The revolution wrought by machinery, the inevitable dangers attending its use, the crowding of men, women and children into factories and workshops require modifications in the rules of law governing the duties and responsibilities of employers. The rules of the common law, which are now condemned by so many and sought to be cast aside, were originally dictated by the soundest considerations of public policy, of practical affairs and government, and of justice as between man and man. The duties of the master toward the servant, as regulated by these rules, were humane and commensurate with the needs of the times that evolved them, and the rules themselves are still proper and just in the great majority of cases. Under them, the master is required to exercise the same degree of care for his servant that he should for his own safety, and he is bound to furnish a reasonably safe place in which his servant is to work, supply reasonably safe implements and machinery, select fellow-servants reasonably competent and prudent, and, where the nature of the business requires an overseer or superintendent, appoint one who is reasonably competent and prudent. The application of these rules regulating the conduct and duties of the master, in conjunction with the rules regulating the conduct and duties of the servant--such as the assumption of the ordinary risks of the employment, the fellow-servant doctrine, and the rule as to contributory negligence--unavoidably creates extremely difficult and complex questions. These rules are still proper and just in their application to such cases as involve the domestic relation between the farmer and his farm hands, the small contractor and his workmen, the householder and his house servants, the butcher, painter, carpenter, or blacksmith and his workmen. In all these cases it is, it seems to us, as true on principle to-day as it was half a century ago that the master is not bound to take more care of his servant than he may be reasonably expected to take of himself, and that a servant has better opportunities than his master of watching and guarding against the conduct and preventing the negligence of his fellow-servant. It is as true now as it ever was that, so long as liability is based on the theory or principle of negligence, a servant ought, generally speaking, to be held to assume the ordinary and obvious risks of the employment upon which he enters and for which he presumably stipulates for adequate and satisfactory compensation. Likewise, in the majority of cases, it is as true to-day as it ever was that the servant who has been guilty of contributory negligence should not be allowed to charge his master with responsibility for the injury. The reasoning of the judges establishing and maintaining these doctrines at the common law has never been refuted. Nevertheless, they are mere rules of law, subject to change, not by the judiciary, but by the legislature; and, in the opinion of the writer, there is no provision in the state or national constitution which would prevent their abrogation if this were deemed necessary or desirable by a legislative body.

But modern industrialism, the development of machinery, the employment of large numbers of men and women in crowded factories, and work in connection with dangerous instrumentalities of manufacture and transportation, etc., have changed conditions, so that what is still true of the farm, the household, the small artisan, the carpenter, the painter, the butcher, the grocer, etc., is not true of the busy hives of manufacture, of transportation by steam or electricity, or of other hazardous industries. The increase in accidents, the apparent certainty that many casualties are inevitable, the recklessness engendered by the modern struggle for existence, the increasing difficulty in many employments of measuring degrees of fault, the pressing necessities and improvidence of the poor: these and other considerations well warrant the interposition of the legislature as the lawmaking power of the state, in order to make changes in the law--changes which the courts should not attempt to make, for their duty or function is not to legislate but to declare what the law has been or now is. Instead, then, of abusing the courts, how much wiser and more decorous would it be for labor organizations, labor leaders, or social reformers to petition the legislature to amend the law, and to abandon the attempt to intimidate and coerce the judiciary into making the desired change. One of our correspondents speaks of "the venomous fellow-servant doctrine." Yet the responsibility for the continuance of that doctrine, if it has become undesirable in any employment or in all employments, rests wholly with the legislature and not with the courts. We should be surprised if any lawyer or student professing the slightest knowledge of American constitutional law would seriously assert that the legislature could not change that doctrine without amending or tinkering our constitutions.

It is, however, fit and proper to add that many lawyers and laymen are convinced that to abolish the existing rules indiscriminately in every case where the relation of master and servant may exist would be a mistake from the standpoint of public policy and practical justice, and that such a radical measure would do more harm than good. Certainly that is the judgment of competent observers of the operation of the British statute. A change in the law which would be wise if confined to large factories and hazardous employments, to labor in connection with dangerous machinery, to service on railroads, in large electrical works, etc., etc., might be extremely unwise, unjust and oppressive if applied, for example, to the small farmer, the artisan, the mechanic, or the householder. A rule concededly wise and just in the one case might be the extreme of folly and oppression in the other. An accident on a farm caused by the negligence or drunkenness of a farm hand might, under some of the proposed reforms or innovations, bankrupt the most prudent farmer for causes quite beyond his control; and a similar disaster might easily overtake the small artisan, mechanic, or householder, and sweep away the savings of years. It is, of course, no answer to say that the farmer, the artisan, the householder employing men or women can insure. Why should this form of taxation be levied upon slender earnings, which are frequently insufficient to make both ends meet? Why should the farmer or artisan of limited means be compelled to pay tribute to private insurance companies so often engaged in combinations to extort the highest possible premiums?