The Judicial Week

Bringing its spring term to a close and entering upon its long summer vacation, the U. S. Supreme Court rendered a number of important decisions :

Oregon Schools. In the fall of 1922, the voters of Oregon by "initiative" passed a law, to become effective in 1926, which required that all children between the ages of 8 and 16 years (except cripples, etc.) be required to attend public schools. It was said that the Ku Klux Klan was behind the law, wishing to put parochial schools out of business, although the law was just as cruel to other private schools. A parochial school and a military academy applied for an injunction against the law.

The Supreme Court's decision written by Justice McReynolds, unanimously granted the injunction, saying:

We think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The fundamental theory of liberty upon which all governments in this Union repose, excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Trade Information. Under the Sherman Anti-Trust Law the Government prosecuted the Maple Floor Manufacturers Association and the Cement Manufacturers' Protective Association for conspiracy in restraint of trade, in that they gathered and disseminated among competitors certain information regarding their business. The lower courts upheld the Government's contention.

But the Supreme Court reversed the decision, not unanimously. Justices Taft, McReynolds and Sanford dissented. The new Justice, Mr. Stone, wrote the decision, which, said:

It is not open to question that the dissemination of pertinent information concerning any trade or business tends to stabilize that trade or business and to produce uniformity of price and trade practice. . . . But the natural effect of the acquisition of wider and more scientific knowledge of business conditions on the minds of the individuals engaged in commerce, and its consequent effect in stabilizing production and price can hardly be deemed a restraint of commerce, or, if so, it cannot, we think, be said to be an unreasonable restraint, or in any respect unlawful.

We decide only that trade associations or combinations of persons or corporations which openly and fairly gather and disseminate information as to the cost of their product, the volume of production, the actual price which the product has brought in past transactions, stocks of merchandise on hand, approximate cost of transportation from the principal point of shipment to the points of consumption, as did these defendants, and who, as they did, meet and discuss such information and statistics without, however, reaching or attempting to reach any agreement or any concerted action with respect to prices or pro- duction or restraining competition, do not thereby engage in unlawful restraint of commerce.

Said Justice McReynolds in opposition:

"They are parties to definite and unusual combinations and agreements, whereby each is obligated to reveal to confederates the intimate details of his business and is restricted in his freedom of action. It seems to me that ordinary knowledge of human nature and of the impelling force of greed ought to permit no serious doubt concerning the ultimate outcome of the arrangements."

Overlapping Inheritance Taxes. Henry Clay Frick died in 1919, worth about $145,000,000. Some of his property was in Pennsylvania, some in New York, some in Massachusetts, some in other states. Pennsylvania demanded that the inheritance tax be paid to it on the whole estate, although only some two thirds of the property was in that state. That cost the heirs about $1,000,000 extra--so they went to court contending 1) That Pennsylvania had no right to tax tangible property in other states, 2) that, in computing the value of stocks in corporations of other states the tax paid to those states must be deducted, 3) that estate taxes paid to the Federal Government must be deducted.

The court held that the heirs were right on points 1) and 2) but wrong on 3). The decision will cost Pennsylvania more than $1,000,000. It will cost many other states many times that amount for refunds on other taxes of that kind illegally collected.

Said Justice Van Devanter for the court:

"It must be held that the Pennsylvania statute, insofar as it attempts to tax the transfer of tangible personalty having an actual situs in other states, contravenes the due process of law clause of the Fourteenth Amendment and is invalid."

Criminal Anarchy. New York State has a law forbidding anyone to incite persons to overthrow by violence the constituted Government. Under this law, one Benjamin Gitlow, radical Socialist, was convicted because, in 1919, he urged "mass industrial revolts" and "revolutionary mass action" in a published article. Gitlow fought the case to the Supreme Court on the free-speech issue.

The Court upheld his conviction. Said Justice Sanford for the majority of the Court: "It [Gitlow's article] advocates and urges in fervent language mass action which shall progressively foment industrial disturbances . . . and overthrow and destroy organized parliamentary Government. . . . This is not the language of philosophical abstraction. ... It is the language of direct incitement."

Justice Holmes, dissenting, argued that there was manifestly "no present danger of an attempt to overthrow the Government by force on the part of the admittedly small minority who shared the defendant's views."

Closing. Just before recessing until fall, the Court received William D. Mitchell of St. Paul who was presented as the new Solicitor General.

The Court left undecided a number of important cases, including the charge of contempt of the Senate against Mal S. Daugherty, brother of the former Attorney General (for refusing to produce his bank records) ; the "Oregon postmaster case," which rests on a question never yet determined: whether the President has power to dismiss an official whom he appointed with the consent of the Senate.