THE
New Jersey Law Journal
PUBLISHED MONTHLY
VOLUME XLV FEBRUARY, 1922 No. 2
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 Courts 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.