VOLUME XLV FEBRUARY, 1922 No. 2
Happily it is not such a frequent occurrence as may be supposed thatthe Judges of our Court of Errors and Appeals split apart so curiously asthey did in determining that the Van Ness Enforcement Act should bedeclared unconstitutional. The result only shows that, like the doctors,Judges cannot all think alike. On the subject of whether whiskey is usefulas a medicine or not our New Jersey doctors, on a canvass, split, 520to 308, or 490 to 319, according as one interprets the replies. In the Nationat large it ran 51 per cent. to 49 per cent., a closer margin. But onlyhalf of those who were interrogated by the Journal of the AmericanMedical Association responded; what the rest thought we do not know.So on the legal questions involved in the Van Ness Act, counting thoseJudges who approved the Act as constitutional in the Supreme Court, thedifference between a yea and nay vote appears to have been only one. Onthe subject of whether the Act could be sustained because it took awayfrom defendants the right of trial by jury, which was the great burden inobjections made by defendants themselves, the Court held what this Journalhas held, that the Legislature had the power to direct that trials mightbe by magistrates without a jury. It had done so over and over again inother matters and could do so in liquor legislation as well. On other pointsthere were various differences of opinion. However, since the Act as awhole is declared unconstitutional, on the ground that it does not conformto the Federal Act, which declares that the illegal possession, sale,etc., of liquors constitute a crime, instead of disorderliness, the Legislaturehas passed new statutes which alter the basis of a conviction from a disorderlyproceeding to a criminal proceeding. There is no hope in this forbootleggers, except as it permits them to escape by jury disagreements ornot guilty verdicts. If no law were enacted the Federal Courts wouldbe filled with cases, and the results there would give no hope to criminals.Generally speaking, the upsetting of the Van Ness Act is unfortunate, becausejury trials are expensive as well as uncertain; trials before Judgesas 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 ofErrors and Appeals of this State also held quite divergent views, but sustainedthe Keuffel & Esser injunction granted by Vice-Chancellor Buchananagainst the International Association of Machinists. The majority decisionof the Court was rendered on Jan. 26th, in an opinion by Mr. JusticeSwayze. His finding was sustained by 9 affirmative and 5 negative[pg 66]votes. Besides Justice Swayze, the members of the Court voting to affirmwere Justices Parker, Bergen, Kalisch and Katzenbach, and Judges White,Williams, Gardner and Ackerson. Voting to reverse were Chief JusticeGummere, Justices Trenchard, Minturn and Black and Judge Van Buskirk.The object of the appeal avowedly is, said Justice Swayze, tosecure a decision as to the legality of picketing when unaccompanied withviolence, molestation of others, annoying language or conduct—in short,what is sometimes called peaceful picketing. Parading in the neighborhoodof complainants with placards indicating that a strike is in progressis similar in its legal character to picketing. He then pointed out thatthe Court is bound in a measure by the recent decision of the SupremeCourt of the United States in the ca