The Washington times., 1921-11-05

This would be the most inopportune
moment to spend a few weeks in jail.
Next week there opens an epoch'mak-
ing conference OF the nations. called by
President Harding. and>I have the job
OF reporting the doings OF that con
ference, day by day. for long time.
SO let us describe the situation with
out any strong words. The story
shows what one judge can do to force
his preferences about the treatment OF
the laboring class on Congress.
Women I'm Industry.
Congress passed a law that woman
in industry, in this district, should be
protected by minimum wage law.
Such laws exist in many States OF the
Union, and have been uniformly up
held by their courts. They are a
familiar method of social protection in
other parts OF the world.
Last spring this law was upheld
here in the District. 1t happened,
however, that one judge dissented
and a technicality has given him the
power TO have It tried over again.
There is no pretense that 1t was not
fully tried before. and fully consid
cred But this judge did not like the
decision.
The technicality was that when a
Judge of the highest court is sick the
court can call on a member Of the
next court to sit in his place. That
was done in this case. The parties
had the choice of hearing the case
with two judges or calling in third.
They called in the third. AS the
decision went In favor of the protec'
tion of the working women, however,
an application was made for another
hearing. 1t was denied by the ma.
jority OF the judges who had sat in
the case.
Sick Judge Called on.
SO the attorney for the employers.
who did not wish to pay the minimum
wage got after the sick judge, and
he voted for the new hearing. e..
1t makes a neat point of law.
whether the demand for a rehearing
was legally granted. AS a matter OF
legal morals IL has caused more com
ment than anything that has hap
pened around here in a long time.
Some lawyers think that Professor
Felix Frankfurter, of the Harvard
Law School, ought to have refused to
re-argue the case, merely standing on
the decision of the majority of those
judges actually concerned in the case.
He chose, however, to argue 1t, but
he did il in a way to leave no doubt
about what he thought of the pro
cedure. He told the court that he was
at loss what to say, as all the argu-
ments had been fully presented and
considered. He came as near as he
dared to saying the procedure was not
legimate.
When Mr.. Frankfurter made his
one of the judges rose in
his place, gathered his robes around
him, and strode out of the court.
+ Apology Demanded.
There was hasty consultation of
the other judges. Finally the chief
justice told Mr.. Frankfurter that
while he himself saw nothing i'm
proper in Mr.. Frankfurter's observa.
tions, he had been instructed by the
to demand an apology.
In the argument ABOUT whether or
not the demand for an apolQEy was
justified, the offended iusticn took
occasion to refer TO such social legis.
lation as Bolshevism. MIR. Frank.
furter pointed out that the laws We're
passed long before the word Bolshe.
visr was ever heard OF.
The Judge admitted that, hut he
held that the whole reform movement
of the last twenty or thirty years
was the same thing as Bolshevism.
I suppose | am within my legal
rights in observing that it is a dan.
gerous thing for the courts to feel
the responsibility OF preventing the
people. through their legislatures.
from developing along modern lines.
At least, IL ! am m contempt in
holding that theory, / have the sat.
lsfaction of knowing tHat the lead.
Ing defender of the theory is Mr..
Justice Holmes.