The Birmingham age-herald., 1923-09-16
UNWORTHY CASES CONSUME TIME OF SUPREME COURT I
Tribunal Making No Material Progress In Clearing Its
 Docket

WASHINGTON, Sept. 15.-(By the Associated Press. .)-The supreme court Is making no material prog ress In clearing It's docket. When 1t meets October 1 to begin it's next term it will find substantially as i many cases awaiting consideration as a year ago.
 This condition Is not due to- lack of efftrt, for no matter how fast the court speeds up its disposition of cases the accumulation upon it's docket keeps pace. The real trouble, In the opinion of attorneys practlc- ing before the court, is that the ap- pelate Jurisdiction of the highest tribunal Is sought by many liti- gants whose controversies do not present questions worthy of It's con sideration, and who should not be permitted to consume its time.
 Congress has from time to time attempted to solve the problem by legislation, but laws are slow in re- ftrming human nature. As long as the court is open to those who would use 1t to delay the execution of sen tences or take last desperate reversed, it's dockets will be crowd ed with cases in which a appeal is asked merely to postpone the in- evitable day when the prison doors must close on the petitioner, or when a judgment must be paid.
 Long Waiting.
 owing to the congestion of busi- ness a case filed today will not be reached by the court for argument within IS months unless 1t is in cluded in that comparatively small number advanced for hearing out of turn. Although substantially 100 more cases were disposed of last term than in 1918, the court docketed during that peritd 50 more than In 1918, and had at the end of the term undisposed of only 40 less eases than 1t had at corresponding pe- riod five years ago. The compara- tive inslgnificance of this inroad into the accumulation of business is evident when 1t is known that the number of cases annually docketed is in excess of 1000, Should rhe court be able tC maintain the prog ress made during the last five years, It will be 45 years before it's docket Is cleared.
 It apparently was the original in- tenticn that the time of the court would be given to the decision os constitutional questions and legal controversies of national importance, and the establishment of precedents in disputed features Of new laws.
 
 slst In that design by restricting the causes In which lower courts could grant appeals, 1t really opened a new avenue for overcrowding. It gave the court discretion to itself to determine when 1t would grant appeals in those cases in which ap- peals were not granted by the lower courts, so that now endless periods of time are crTsumed hearing the petitions of litgants whose conten- tons are found m the end to De of insufficient general importance to warrant tlIe srDl eme court in review- ing them.
 Court Can't Determine.
 The court cannot determine wheth- CT any particular application asking an appeal under a writ Cf certiorari possesses sufficient merit to warrant 1t without an examination of the pa pers submitted. Each justice there fore must prepare himself to discuss the case at weekly conference, giv- ing to each application substantially as much time as would be required to dispose of case by formal de- cision. Those cases which the court does decide to hear must then be studied a second time when they come up for argument and decision.
 The cases which the court can be required to decide only after it first has consented to consider them, cover virtually every question ever made the subject of litigation. Aside from criminal and civil eases brought solely for delay, the class of cases making the most impossible de- mands upon the time of the court are those arising under the federal employers liability act, patent and trade mark infringements, and claims. All of these groups of cases are de- To n accurate entertainment of the facts involved, which can only be done in a trial court, leaving lower ap- pellate courts to determine whether the law had been properly applied under the conditions found tG' have been presented by the facts.
 Precedents Established.
 A long line of decisions by the su- preme court has clearly established the law in liability, patent, trade mark and claims cases. Nevertheless hundreds of cases falling In these groups and involving Issues which have been fully litigated and de- termlned by the supreme court. an nually knock at its door for admis- sion, and cannot be denied until after the court has wasted much valuable time in ascertaining that they pos sess no merit and are not entitled to q TeNlSWs
 For several years the most per sistent offenders in this respect have been personal injury cases arising during. federal control of the rail- roads, and brought under the federal employers liability act. Appeals in these cases are sought as often by the railroads and the federal gov ernment as by the employees or their legal representatives. In most of them the law has been established long since. The question most often raised is whether the employe at the time of the accident was engaged in interstate commerce. although the court has repeatedly defined what constitutes such commerce. If he was not, then there was no federal juri sdiction and compensation must be sought under state law
 O O O
 Some Questions Up.
 Among the cases now awaiting de- cision by the court as to whether 1t will consider them, is one asking whether night watchman in a rail- road warehouse, In which interstate as well as intrastate commerce was stored, was engaged in interstate commerce. Another asks the high est tribunal to rectify an error of counsel in the lower courts by per hitting the case to be amended so as to bring In th> proper defendant. The parts play@. by coupling pin, by defective 0rawheads, by auto naatic couplers which refused to WGrk