New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-31
Not Judicial Legislation.

1T ia A familiar rule" said Justles
Brewer that a thing may be within tne
letter OF the statute and YET no, Wltlin
the statute. because not within Its spirit.
nor within the intention OF It's makers.
This mas been often asserted, ana tne re"
ports are full OF cases illustrating US az
nnIication This Is not the substitution OF
The viii of the Judge for thet OF the .esls,
lator. FOR frequently WORDS OF sems.a'
meaning are used IN statute. wora,
broad enough 10 include an act In question:
and vet a consideration OF the whole legis-
iatton. or of the circumstances surrouno-
ing its enactment. or or the aoeuro lesut.s
which follow from giving such nroan mesn.
ing 10 the words. makes II unrea sonaoie
10 believe that the legislator intended 70 ~
clude the particular act ., q.
effect an argument that a literal construc-
ton should not be given 10 The stature; ous
a reasonable interpretat on. NOT tne ruie vs
the letter which kills. The court WntSI
conquered in that opinion lncluded Snlet
Justice Fuller and Associate justices Brew
~ and Brown These iurists dehneratet,
adiudged that a case which conceaeoly .as
within the express language or me sIatu.s
vas not controlled by u, because the ac.s
connIained II, although within the IL
TFR we're not within the INTENTION cs
Congress- This was nothing more nor less
tban apnlying 10 the construction ara appNE
catior of a statute the rule Of construction
invoked by the CHIEF Justice n the stare.
ard oil case-namely. that or eAam,n!hs
the case by the light OF ,es4,or rsasoh; ' 81 ,ns @
isw should bring about the very destruc-
,Ior and restraint Of all trade and com.
merce which II is the purpose OK the statuts
10 prevent
psckhar, for Reasonable Construction.
t,s,ice Harlan. in his opinion disseruns
20 .he internretatior put upon the Law oy
Tho remoinder OF the court In the Tobacco
case. asserts that the court misrepresenteo
tho late Justice Peckhan and suggests
thar Justice peckham would not nave suo-
scrihed N the view OF the majority. ous
the records o: former opinions throw tsnt
on that assertion also; In me Joint ira.
which Justice Harlan refers. Justice Peck
nam himself said. referring 20 the interpre-
tation cf the act Justice harlan was nis-
cusSing. - ..,.,.. h., ra.
eo,ablo construction. or else there would
scarcely be an agreement or contract
among business men that couIa no, us
said TO have indirectly or remotely some
hearing on interstate commerce, anu pos
sibIv 10 restrain T. CO.,
The decision in the case OF the Church OF
the Holy Trinity clearly denohsSra,ss Sr ts ma ma.
~ construction adopted by the court in
Roth The STANDARD oil and the Tobacco
cases. but that the same rule was appie1
there which has often nsen appheo ueIo,s,
,he light of the reason for the enactment
~ the statute. the history OF the evil which
gave rise 30 the legislation ana the put'
pose for which the Legislation was enacted
Ia the further duty 20 give 20 the words
~ a statute. n possible. an Interpretation
which while accomplishing the result
which the statute was enacted 70 or'ns
about. will avoid the untoward conse.
orences which would necessarily follow .
narrow and literal Interpretation ot ~
meaning.
In the light OF these citations Of Jus
tice Harlan's vehement declaration that
70 construe the law as II the word ''un-
due" were contained therein Is judicial
legislation" and OF his severe criticism Of
construction by the rule OF reason" In
voked by the chief Justice In the two re-.
cent decisions. those whose eminent re-
spect for the great service which Justice
Harlan has rendered In the Supreme