The Washington times., 1909-12-11
His Judicial Record Declared
Contrary to Present Ad-
miniStration Policy.
DECISION CITED
IN RAILROAD CASES
Determined Fight Will Be Made iii
Senate to Prevent His Eleva-
ton to Supreme Bench.

''If Judge Lurton Of Tenn see goes
on the supreme bench, ne must either
overrule the recent Standard Oil dcision
or else reverse his own decision in the
IIeckIa-Osceola copper case" declared
a Senator who has been looking up the
record OF the Tennessee jurist
Judge Lurton," continued the Sena-
tor, sis sixty-six years old, and that was
my original reason for wanting 10 make
very sure that ne was a good man for
the place. I didn't Ike TO see a man OF
that age put on that bench.
More Than Age.
But later I went 10 reading Judge
Lurton's opinions, and have found
more important reasons than his age
for opposing MIN. one Of his latest de-
cisions is in this HeCkla copper case.
zone copper company has secured
control Of The stock OF another Action
WIS brought under the antitrust act to
prevent this control Judge Lurton
went back 70 the old Knight case for
his precedent-the case which permitted
the Sugar trust 10 live, and originally
broke the power Of the Sherman act
and held that there was nothing in the
act to interfere with this assumption OF
control
What II It did promote a monopoly
in the business OF mining copper? It
hadn't been proved that it restrained
the interstate commerce in copper; and
that the Knight case said was the real
matter in issue.
The reasoning in that decision Is eX-
ac4ly as in the knight case. It has
been generally understood that the
Knight case was a back-numher; not
overruled by the Supreme Court, be-
cause the court doesn't do things that
way; just passed over. forgotten, and
a new rule adopted for such cases: the
rule OF the traffic association and North
ern Securities cases. the rule OF the
Standard Oil case.
For the Company.
But Judge Lurton goes back 10 the
X -ght case; and II he should 20 on
the Supreme Bench and decide the Stan
dard OIL case by that precedent, he
would decide for the company and
against the Government. The only hope
Tor the Government would be IN re-
versal OF his former position"
The Heckla-Osceola case mas recently
been brought to the attention Of SEN
atOrs by the opponents Of Judge Lur-
ton. and his opinion in il, published
IN 18th Federal Reporter, has been
getting a prayerfuI consideration at the
naqds OF statesmen. who will have to
decide whether Judge Lurton shall be
confirmed
The opposition 10 Judge Lurton was
At first engaged chiefly in the analy-
sis Of his decisions in cases involving
injuries TO railroad employees. OF these.
The Deik and Hazelrigg cases are the
most important.
Delk was a trainman. who lost foot,
coupling cars The law required safety
couplers, but there we're none In this
case The Law provides that ia case Of
such failure to provide safety couplers
IAN employee shall not be deemed to
have assumed the risk, although con-
1inuing In the employment OF the car
Tier.'
Against EmplOye.
But Judge LurtOn held that the en-
ploye had assumed the risk, and de-
cided against him and his right 70 re-
cover damages SO that in the sixth
circuit. where Judge Lurton sits. the
law on this subject is construed on the
theory that the empioye takes the risk:
IN other circuits the contrary is held.
Hazelrigg lost an arm coupling cars.
a claim agent found him at the rail
road hospital IN the midst OF his SUI
fering; paid him &25: assured him his
care il the hospital would cost him
nothing; and gave him pass home. For
this Hazelrigg gave a receipt reIin-
gushing all claim against the railroad
Judge Lurton refused to allow Hazel
Tigg damages.
These and other cases are being urged
as reason why Judge Lurton ought not
70 be confirmed II nominated. There
has been lnumaton In the last few
days that President Taft might posgf-
bly, reconsider his decision TO name TI1r-
tom but the general belief Is that the
name viii be sent % the Senate
At a Disadvantage.
II the Senator'S who have been looking
into Lurton's record decide 70 make a
fight. they wiz begin 81 a great dis
advantage, Tor the nomination is ex-
peCted 10 recsive a favorable report
from the judiciary Committee. and Il
VIII then be necessary 20 talk II 10
death in executive session
Some members are disposed 10 make
an Issue on this matter and start tho
fight. They say that President Tar
was urged upon the country In bis en-
paign as peculiarly qualified 10 select
Federal Judges because he had been
one.
The importance OF these gaIec+fons
was pointed out In tho fact that The
President. during this term, would
likely have 10 make appointments 10 "A
majority OF places on the court That
he would select judges with dirpoglffOD
10 give the brOadcst and most modern
construction 10 the laws and Constitu-
ton. was promised. The record OF
judge Luz ANltu lA lE DfAIlE HIEtU. does
not represent that sort Of construction:
and therefore. II Is felt that there rs
justification for opposing him.
Such a course n adopted BY the Sen
ate insurgents. would bring them TO a
sharp clash with the President IN a
matter he would be likely 10 regard
as personal. They have, in some cases
az least dislike for such a course. but
indications are that the fight Will be
made II Lurton's name IS sent 10 the
Senate.