St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-01-09
KNOCKED OUT AGAIN.

Some one, satirizing the extreme rev.
erenee of the courts for technicalltles,
said that nowadays man must use eX-
traordinary precaution in committing
murder to secure conviction. Samuel
j. Tilden, great lawyer that he was and
skilled beyond the reach of most law
yers in the technique of his profession,
was unable to draw a will that court
was incapable of breaking in one inn
portant bequest. The rule of law that
the intent Of the testator or OF the legls-
lature is to be sought and observed is
more hOnOred in its breach than in its
observance.
We have a fresh illustration of this in
the decision Of Justice Parker, OF the
New York supreme court, iii con-
struction of the anti-pass amendment
to the constitution of that state adopted
at the recent election. The convention
that framed it was presided over by
Joseph ii. Choate, who gave to the
framing Of this clause his especial at
tentlon, aided by Elihu Root, two of the
recognized leaders of the bar of that
state. The convention was largely COM
posed of lawyers Of ability. The clause
was made as clear, the language used
was as simple and the intent to abso-
lutely prohibit railroads from issuing.
and state officers from receiving. passes
was expressed in terms SO plain that it
was hoped the c0mmOnest Intelligence
could not fail to comprehend their exact
meaning.
Officers were forbidden to demand OF
receive passes ''for his own use or Dene-
fit or for the use or benefit Of another"
This would seem to the common mind
to be clear enough, and that it meant
that no officer as such should ask for or
receive pass for the use of himself as
such officer. That he might ask and get
one for himself as an official and ride on
it as an official, was the very thing
sought to be prevented. And yet this is
the precise thing thai a justice of the
supreme cOurt-a court, by the way, that
is not Supreme-SayS he can do. lie
may not ask for or use one in riding
about on his individual business, but if
he use it in travel ON the business of
the state he can ask for it. and the rail-
way company can issue it with immun-
ity from the severe punishment provid-
ed, Il forfeiture of Office being portion
of the officers punishment.
The learned Judge places great stress
on the word ''oWn" and holds that it re-
lates to such use as is personal to the
man as distinguished from the officer.
The case arose in the question wheth-
or the law requiring railroads to pro-
vide transportation to the state railroad
commissioners was repealed by the
amendment. The justice holds that it
was not. Back of this case, however,
are the members of the Legislature, who
were nonplussed by the adoption Of the
amendment, and who saw themselves
shut out from the perquisite of mileage
and beStirred themselves to discover
some means Of avoiding the necessity
of paying their railway fares. As every
legislator is supposed to travel only ON
the business of the state this decision
enables them to ask and get passes, and
thus the very evil sought to be rene
died is continued and the remedy nulll-
lieu Ny IllS dDouIu IHI ottdluCu COhN
Structi0n.
One gets in this microscopic view Of
language taken by the courts, the
source of all that verbiage with which
lawyers bestrew their documents, and
which seem to the lay mind so absurdly
redundant. They are merely the pre-
cautionary measures taken to avoid a
defeat OF the intention of the in
strument by judicial construction and
refinement-a sort Of picket guard
thrown out all around the intent to pre-
vent a surprise by an enemy eagerly
on the lookout Tor some loop
hole by which to gain entrance
to the camp. Courts and lawyers
and legislators assume towards each
other too much the attitude of chess
players or of pugilists, the one striving
to undo the other merely aa display of
skill or force, and ignoring the interests
| behind them. 1t is play of skillful
| fencing. the court watching to catch
! the lawyer or legislator off his guard,
SO that il can drive its rapier home and
| lay its adversary low. Theoretically law
| is applied common sense. Practically
it is too often misapplied nonsense, as
! in this New York case.