OUR JUDICIAL OLIGARCHY: (FOURTH ARTICLE)

...The provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village...

...1) It is true, the learned Justice says that he sees nothing in the history of the judiciary which "Supports an expectation that the function of interpreting will be tortured into an exercise of legislative power...

...Bad as all admit it would be to combine in one person legislative and judicial power, when done constitutionally or in a lawful manner, it is infinitely worse if legislative power is in fact exercised by the Judiciary, but without any right so to do...

...The Court of Appeals, however, construed this statute to mean that a separate recovery could be had for each violation, and in order to distinguish the Griffin case, said: <11) Harkow v. New York City Railway Co., 131 A. D. 194, p. 196...

...While this decision did not call forth a dissenting opinion in the Court of Appeals, Mr...

...Div., 410 (N...

...I confess that when I first read it I could see no difficulty in construing it, nor have I been able to see any such difficulty since that time...

...Justice Harlan, with whom concurred Justices Holmes "It is the essence of tyranny to combine in one individual power to make laws and also power to determine their meaning and application...

...14) The Committee which had been officially certified to be authorized to represent the party certified the nomination of Mr...

...Public policy must be looked for in our statutes, in so far as they have spoken, not outside of them...

...The other provides "every person violating the provisions of this article" shall forfeit for each violation one hundred dollars to the State...

...6) Section 104 N. Y. Railroad Law...

...The Court is of the opinion that if cumulative recoveries are to be permitted, the Legislature should state its intention in so many words...

...35 in question—and I think they are— and if my conclusion as to the facts of the case presented are correct—and I believe they are—then the second clause of the Section (the one quoted above) has no application and the State Central Committee had no jurisdiction to determine the controversy in question...

...Justice Lurton of the United States Supreme Court recently declared to be "A Government of Men" instead of "A Government of Law...

...To get the full force of the decision of the Court of Appeals in the above case, it should be contrasted with another and later decision of the same Court...

...Unmistakable"—A Potent Word AFEW YEARS ago, Congress passed for the District of Columbia, a law relieving married women from their common law disabilities...

...Y.) Milligan v. Knitting Co., 137 App...

...Justice Gaynor, since the foregoing dissenting opinion was delivered, was elected Mayor of Greater New York...

...That this charge rests upon a substantial basis of fact is well known to every practicing lawyer...

...I hope I may say with the highest respect for all concerned that I do not see how the legislature can make its meaning plainer without passing a bill of remonstrance that it means just what it says...

...Under such a system, general rules of law, which all must obey would cease to exist, and we would have what Mr...

...When the case finally reached the Supreme Court of the United States, however, as it did in 1910, that Court decided by a majority vote that the statute gave plaintiff no right of action...

...14, 1911...

...The Secretary of State, having refused to give to the bolting nominee the place on the ballot assigned to nominees of the Republican party, application was made to the Courts of the State to compel the Secretary of State so to do...

...They are in substance identical, whether the instrument for interpretation be a statute or a contract...

...It seemed, and now seems to me to be clear and simple...

...7) Mr...

...Griffin, a piano dealer, likewise brought an action to recover four penalties for the refusal of the street railway company, on four separate occasions, to give him transfers as required by law in trips to and from his place of business...

...Justice Marshall said: "Judicial Construction can never legitimately commence, until certainty as to what is the sense intended (in the statute) is found to be so obscure that it might reasonably be said to be one thing or another, either being within the fair scope of the words used to express the purpose...

...Note now that the venerable chief justice of the Court took a view of the statute directly opposite to that of the majority...

...5) In order to secure the enforcement of this law, the Legislature further provided: "For every refusal to comply with the requirement of this section, the corporation so refusing shall forfeit fifty dollars to the aggrieved party...

...A number of delegates, however, bolted the convention and organized another meeting, which assumed to nominate a Republican Candidate for Governor in opposition to Mr...

...10) 179 N. Y., 449...

...Scudder, a Minister of the Gospel, to recover two hundred fifty dollars, or five penalties of fifty dollars each, for the refusal of the street railroad company on five separate occasions to give him transfers required by law...

...Now, there is not here, as I think, any room whatever for mere construction,—so explicit are the words of Congress...

...that a more definite form of statement be substituted for the words hitherto deemed sufficient...

...2, Wisconsin Statutes, State ex rel Cooke v. Houser, 122 Wisconsin, 534, p 562...

...It is for it to follow the statutes, and leave it to the highest court to dispense with their operation, if that course is to be pursued...

...The mass of people understand only the results of the decisions, and with those results they are not satisfied...

...7) Scudder v. Interurban Street Railway Co., 96 A. D. 340...

...Conceding it to be within the power of the legislature to make this alteration in the law if it saw fit to do so, nevertheless such radical and far reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention...

...The purpose of the statute was declared to be that "Public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare...

...For example, it is a familiar rule of construction that the Courts will not give effect to a statute changing the common law unless the legislative intention is expressed in "unmistakable terms...

...La Follette for a third term as Governor, and a state ticket in sympathy with him, and adopted a platform which rang true on the principles of railway rate regulation...

...Roe, in the next article, will discuss the recent decisions by the Supreme Court of the United States in the Standard Oil Company case and the American Tobacco Company case...

...Her right to maintain such an action was rested upon the provisions of the statute above quoted which gave to married women the right to recover for an assault committed upon them as fully and freely as if they were unmarried...

...He said: "If the rules of construction thus quoted are applicable to the provisions of Sec...

...It is to be regretted that in the Wisconsin case, the opinion of the Chief Justice favored that faction of the party with which he was in avowed sympathy...

...As there is a great body of statute law, the purpose of which is to change the hardships, injustice and cruelties of the common law, the result is that under cover of this rule, much of this beneficent legislation has failed of its purpose, for it is practically impossible to frame a statute, so that its meaning is "unmistakable" to one who has no sympathy with its purpose...

...Again referring to the decision of the majority of the Court, he says: "The Judgment just rendered will have, as I think, the effect to defeat the clearly expressed will of the Legislature by a construction of its words that cannot be reconciled with their ordinary meaning...

...It is unfortunate that the construction of the statutes considered in the other cases above referred to, and hundreds like them, results uniformly in favor of those interests which a large proportion of the judges represented while practicing as attorneys...

...Special agents of the Government, having bought from a dealer, fifteen samples of vinegar, which it was claimed violated the law, an action was brought to recover the aggregate penalties...

...It is no part of my purpose to describe the memorable camp-paign which preceded the Republican Convention in that State in 1904...

...TWO RECENT DECISIONS of the New York Court of Appeals well illustrate the subject under consideration...

...He further says: "The rules of construction are plain and simple of application...

...12) People v. Spencer, 201 N. T. 105...

...One action was brought by Mr...

...For street railroad companies to continuously refuse for many years—for ten years—to give the transfers over their connecting lines reuired by statute is a condition of things 'in the modern life of great cities' which public policy requires should be visited with all the prescribed penalties, instead of being shielded from them by the courts against the expressed will of the legislature...

...One of the abuses from which the people of New York City suffered for a long time was the refusal of the various corporations owning or operating street railroads therein to give transfers to passengers from one line to another...

...The railways and other interests benefiting by special privilege, believed if they could prevent the passage of such a law and halt the reform forces at that point, they would eventually force the repeal of the law taxing railways as other property was taxed, and all the other reform legislation passed during the preceding two years of Governor La Follette's administration...

...We can declare no 'sound public policy' as against a statute, and substitute it for the statute...

...The effect of this decision was, of course, to operate as a practical repeal of the statute, since the cost to the plaintiff cf sueing for a single penalty would be more than the amount he could hope to recover...

...Scudder recovered in the lower Court...

...A man having committed a particularly brutal assault upon his wife, (whether they were living together or not does not appear), she brought an action against him to recover damages for the assault...

...8) Griffin v. Interurban Street Railway Co., S6 A. D., 636...

...Cumulative recoveries will not be permitted by the courts in the absence of such a definite statement by the Legislature, as to leave its intention in that respect unmistakable...

...Justice Lurton in the paragraph quoted above from his article in the North American Review refers to "the rules of construction" which the courts apply in the interpretation of statutes as "plain and simple of application...

...Justice Winslow, also writing for the majority of the Court in the same case said: "The question is whether the Legislature has created a special tribunal for the decision of controversies as to rights upon the official ballot, and this question brings me necessarily to the consideration of Sec...

...Notwithstanding this fact, a majority of my brethren are of the opinion that while the rule for the recovery of cumulative penalties, as already adverted to, is firmly established by the earlier decisions of this Court, yet the changed conditions in the modern life of great cities render its modification imperative...

...p 568...

...Unless a law providing for such regulation could be passed, the reform movement of that State, which had started some ten years previously, was, as it seemed, destined to complete failure...

...5) Section 104 N. Y. Railroad Law...

...In the note, I give a few out of hundreds of decisions that might be cited illustrating how difficult it is to change by statute the common law rules applicable to employer and employee in such manner as to give the latter substantial rights against the former, which he did not possess at common law...

...La Follette and his associates...

...When that appears, effect will be given to the Legislative intent...

...Its record is written large in the history of the Progressive Movement which has taken place in this country during the last fifteen years...

...Preceding the Republican State Convention in Wisconsin, in 1904, that State was the scene of a conflict which, in its intensity and bitterness, resembled a civil war rather than a political campaign...

...To meet (4) Gombert v. McKay, 201 N. Y„ 27, (decided February 7, 1911) holding that because the section of the New York Labor Law there considered did not in terms deny to the employer the defenses of assumed risk and contributory negligence that such defenses were available and plaintiff could not recover...

...Is it obscure or of doubtful meaning...

...Concerning this there was no dispute...

...Mr...

...It is true that of the seven members constituting the Court when this decision was rendered, Mr...

...It is unfortunate that the construction of the statutes (referred to in this article) and hundreds like them, results uniformly in favor of those interests which a large proportion of the judges represented while practicing as attorneys...

...A Momentous Decision IT IS WITH SATISFACTION that I now call attention to a case wherein the opinion, misinterpreting a statute, was delivered by the minority instead of the majority of the Court, and therefore did no harm...

...One of them provides that "for every refusal" to give a transfer, the railroad company shall forfeit fifty dollars to the aggrieved party...

...The logical result of this decision must be to deny the wife the right to sue the husband on contract, as well as in tort, and thus leave her where she was at common law, so far as any injury to her personal or property rights by her husband is concerned...

...The process of reasoning by which this conclusion is reached is thus stated in the opinion of the Court: (10) "Referring once more to the language of Section 104 of the Railroad Law, imposing a penalty, we find the single sentence in which it is contained, opening with the words 'for every refusal to comply.' It is quite obvious that the legislative intention to permit the recovery of cumulative penalties for refusals of the defendant to comply with the provisions of the railroad law in regard to the transfer of passengers, is as clearly manifested as in any of the cases cited...

...8) These cases were appealed by the street railway company to the New York Court of Appeals and the decision there is referred to as the Griffin case...

...so clear and simple in fact as not to need construction...

...WHILE THE FRAMERS of our Constitution and the founders of this Government disagreed upon many things, they were all agreed, from Hamilton, representing one extreme of thought, to Jefferson, representing the other, that the legislative and judicial branches of the government must be kept separate...

...A Government of Men or of Law...

...4) Compare These Two Decisions...

...35 Statutes 1898 (the one above quoted) for this is the only section which can be claimed to have that effect...

...The legislature followed a line of decisions of the Court of Appeals, cited in the Griffin case, in using the phrase "every refusal" in the Railroad Law...

...35, Sub...

...While by a system of leases and contracts the street railroads were under one management, and for all practical purposes, were one concern, yet as sections of the roads were owned by separate corporations, separate fares were extorted from passengers where they passed from one line to the other, even on continuous trips...

...3) The majority opinion refers to the fact that at common law, the wife could not maintain an action against her husband nor indeed maintain any action, unless she joined her husband, and that her identity in law was practically merged in his...

...Every lawyer of large experience, can readily add from his own practice and observation, many cases, to the few I shall cite, in proof of the charge here considered...

...Mr...

...Justice Marshall, writing for the majority of the court said: (15) "To our minds, the fundamental infirmity in such reasoning is the assumption that there is ambiguity (in the above quoted statute) when there is none in fact...

...The defendant naturally defended on the theory that within the rule of the Griffin case, above noticed, it was liable at most for only one penalty...

...The Legislature has declared no such thing, but the very contrary...

...Now determine whether the Court gave effect to the intention of the Legislature in the street railway cases, or whether it gave effect to its own views...

...It is then said: "It may be presumed that the Legislators who enacted this statute were familiar with the long established policy of the common law and were not unmindful of the radical changes in the policy of centuries, which such legislation, as is here suggested, would bring about...

...had been officially certified to be authorized to represent the party...

...A few illustrations will serve to make this clearer than any amount of discussion...

...Mr...

...and the people will soon come to distrust the motive, of the Court, where otherwise they would only condemn its act...

...12) The statute under consideration in this case related to the adulteration of foods and provided: "Every person violating the provisions of this article shall forfeit and pay to the people of the State the sum of one hundred dollars for each violation...

...Justice Harlan, in his dissenting opinion, referring to this statutory provision, said: "In my opinion, these statutory provisions, properly construed, embrace such a case as the present one...

...15) 122 Wis...

...Kellogg v. New York Edison Co., 120 App...

...Justice Gay-nor, while a member of the Appellate Division of the Supreme Court, (which is inferior to the Court of Appeals), declined to follow the rule it laid down and stated his reasons thus: "The statute in express terms provides that 'For every refusal to comply with the requirements of this section, the corporation so refusing shall forfeit fifty dollars to the aggrieved party.' We have no right to nullify this statute by holding that the bringing of each successive action for a penalty waives all penalties incurred prior to the bringing of such action, and the actions brought therefor...

...It is now told that its language is not plain enough...

...Had the views of the Chief Justice prevailed in this case, it may well be that the Progressive Movement would have been turned back in Wisconsin and halted in the Nation...

...With the mere policy, expediency, or justice of legislation, the Courts, in our system of government, have no rightful concern...

...Respecting the reasoning of the counsel for plaintiff, who contended that the statute above quoted did not apply, Mr...

...Ives v. South Buffalo Railway Co., 201 n Y., 272, (decided March 24, 1911) holding that because the section of the New York Labor Law there in question did in terms deny the employer the defenses of contributory negligence and assumption of risk, the statute was unconstitutional and the plaintiff could not recover...

...Suffice it is to say that the Convention, which assembled in Madison, Wisconsin, in June, 1904, renominated Mr...

...It is the essence of tyranny to combine in one in"The mass of people understand only the results of the decisions, and with those results they are not satisfied...

...The statute, among other things provided: "Married women shall have power to engage in any business and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection of their property, and for torts committed against them as fully and freely as if they were unmarried...

...9) 179 N. Y., 438...

...If the words used by Congress lead to such a result, and if, as suggested, that result be undesirable on grounds of public policy, it is not within the functions of the Court to ward off the dangers feared or the evils threatened simply by judicial construction that will defeat the plainly expressed will of the legislative department...

...Indeed, it is rather to point out the evils that result from this practice of the Courts than to prove its existence that I discuss the subject at all...

...6) The street railroads, having refused to give the transfers required by law, actions were brought to recover the penalty of fifty dollars for each refusal so to do...

...and Hughes, dissented...

...He recovered in the lower Court...

...11) Mr...

...In such case, to the baneful results that must always follow the exercise of legislative power by a judicial officer, is added those that ever accompany the offense of usurpation...

...If the Courts refuse to give effect to the intention of the law-making branch of the government, as expressed in a statute, it does not help the case to say that this was done according to "rules of Construction...

...Decided Feb...

...A court of last resort may disregard legislation, or even legislate, but only because there is no superior authority to reverse its action...

...13) Put the two statutes above quoted side by side...

...And I venture to say that there is no public policy for the shielding of railroad companies from the payment of statute penalties which they persistently incur year after year, but the contrary...

...dividual, power to make laws and also power to determine their meaning and application...

...A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred...

...Justice Lurton stood with the majority but will appear I think to the mind not fearful of the "radical changes in the policy of centuries" which this statute brought about, that the minority and not the majority of the Court followed the "plain and simple" rules of construction...

...14) Sec...

...2) Judge Lurton, however, agrees that nothing but disaster could result from the exercise by the Judiciary of any sort of legislative power...

...CLOSELY ALLIED to the subject last discussed is the charge that the Courts, having learned to destroy statutes of which they disapproved, by holding them to be unconstitutional, have come to interpret statutes admittedly constitutional, so as to make them express the views of the judges constituting the Court, even if thereby they disregard the intention of the law-making branch of the Government...

...The Wisconsin Statute, in force at the time in question, which provided for settling disputes of precisely this character, by the State Central Committee was as follows: "When two or more conventions or caucuses shall be held and the nominations thereof certified, each claiming to be the regular convention or caucus of the same political party, preference in designation (on the ballot) shall be given to the nominations of the one certified by the committee which (13) People v. Spencer, 201 N. T., 105, p. 109...

...Further, Mr...

...This court is not in that position...

...Their duty is only to declare what the law is, not what, in their judgment, it ought to be—leaving the responsibility for legislation where it exclusively belongs, that is with the legislative department, so long as it keeps within Constitutional limits...

...this abuse, a few years ago, the Legislature of New York passed a law requiring transfers to be given to any passenger making a continuous trip over the roads covered by the lease or contract, so as to entitle the passenger to a continuous passage over the line in question for the single fare of five cents...

...9) The Court of Appeals, after holding that the law had been violated by defendant in refusing transfers, arrived at the conclusion that but one penalty could be recovered...

...Div., 383 (N...

...The issue was state regulation of the rates and charges of railways...