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The Green Bag
not wish to join a union. It is calculated to place upon his freedom of choice and action a coercion which no longer leaves him wholly free. Its tendency is to expose him to the tyranny of the will of others, and to bring about a mono poly which will exclude what he has to dispose of and other people need from the open market, or perhaps from any market." Procedure on Appeal. New Trials — Right of Trial by Jury under Seventh Amendment. U. S. In Slocum v. New York Life Ins. Co., 33 Sup. Ct. Rep. 523, L. ed. adv. sheets no. 13, p. 524, the United States Supreme Court decided, April 21, that a Circuit Court of Appeals, when re versing a judgment of the Circuit Court entered on a general verdict in favor of plaintiff because of error in refusing to instruct the jury that the evidence was insufficient to sustain a verdict for plaintiff, cannot direct, although in accord ance with the state practice as defined in Pa. Laws 1905, chap. 198, that judgment on the evi dence be entered contrary to the verdict, but must award a new trial, in order to conform to the provisions of United States Constitution, Seventh Amendment, that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The opinion of the Court was delivered by Mr. Justice Van Devanter. Four of the Justices dissented, Mr. Justice Hughes writing the dis senting opinion, and Justices Holmes, Lurton and Pitney concurring in his dissent. The decision is discussed editorially by the New York Law Journal in its issue of May 26, which declares that the minority "advance the more convincing arguments" in this "really great dissenting opinion." We prefer to quote from the dissenting opinion, inasmuch as Mr. Everett P. Wheeler of New York, on behalf of a committee of the American Bar Association, has asked the Supreme Court to reconsider its decision, because of its "great importance to the whole country," declaring the granting of new trials in cases where upon the first trial it was decided as a matter of law that either party had the right to judgment is "one of the greatest abuses in the administration of justice." Mr. Justice Hughes said: 'Of course, in any case where there are ques tions of fact for the jury, the court cannot under
take to decide them unless a jury trial is waived. But it would seem to be an entire misapprehen sion to say that trial by jury, in its constitutional aspect, requires the submission to the jury of evidence which presents no question for their decision; and that, although there be no facts for the jury to pass upon, still the judgment which follows as matter of law can be arrived at only through a verdict. This is to create a constitutional right out of the practice of taking verdicts by direction. The ancient method of challenging the sufficiency of the evidence by demurrer, and thereupon either discharging the jury altogether or assessing the damages conditionally to await the decision of the de murrer (Darrose v. Newbott, Cro. Car. 143,) reveals the function of court and jury in a clearer light, and shows that the idea that the jury upon a trial where there is no evidence to sustain a finding by the jury can be reached only through a verdict could not have been entertained at the time the Constitution was adopted. "To repeat and conclude: All that has been done in the present case could, in substance, have been done at common law, albeit by a more cumbrous method. There has been no invasion of the province of the jury. That conclusively appears from the fact that this court holds that there was no basis for a finding by the jury in favor of the plaintiff. We have here a simplificacation of procedure adopted in the public interest to the end that unnecessary litigation may be avoided. The party obtains the judgment which in law he should have according to the record. I submit, with deference, that in now condemning this practice, long followed in the courts below, this court is departing from, instead of applying, the principles of the common law, and is extending rather than enforcing the constitutional provision." Pure Food and Drugs Act. Attempt of a State to Burden Interstate Commerce — Conflicting State and Federal Regulations. U. S. That the states, in enacting pure food and drug laws, must take care not to trespass upon the field of interstate commerce to which the federal pure food and drug act applies, was made clear by the decision of the United States Supreme Court in McDermott v. Wisconsin, 228 U. S. 115, decided Apr. 7. The Court (Day. J.) held the Wisconsin law which permitted the sale of articles subject to the regulations of interstste commerce, only upon conditions that they contain the exclusive labels required by the state statute, to be in excess of the state's power and invalid.
