Indianapolis Times, Volume 46, Number 256, Indianapolis, Marion County, 6 March 1935 — Page 3

MARCH 6, 1933

INSIGHT INTO PHILOSOPHY OF JUSTICE HOLMES REVEALED BY HIS DISSENTING OPINIONS Famous Jurist Did Not Hesitate to Stand Alone in Defense of Social Experiment or on Infringement on Freedom. BY HAROLD LA POLT Timn Stall Writer “Life lx an end in itself and the only question as to whether it is worth living is whether you have had enough of it."—Former Justice Oliver Wendell Holmes. His philosophy of life and of the law, which for years will serve as beacon lights in the march of human progress, * be found principally in the dissenting opinions of Oliver Wendell Holmes delivered while he was a Justice of the United States Supreme Court.

Former Justice Holmes was not “the great dissenter,” but he did not hesitate to stand aione steadfast in defense of social experiment, a foe of infringement upon freedom and usurpation of power. In 17 of 55 important cases studied. he and the court's decisions were reached by a bare majority. In 20 others his dissent was shared by two of his colleagues. Only once did he stand alone. Ignored Private Views The law is more than a mere accumulation of precedents and legisla’ive enactments, the former justice insisted. "The present has a right to govern itself so far as it can . . . Historic continuity with the past is not a duty. It is only a necessity,” he wrote. Oliver Wendell Holmes" dissenting rieri'-ionv disclose him as a teacher of judges. He sought to teach that the private views of judges on matters of public welfare are of negligible value. Attempts by government to regular the thoughts of men always drew his opposition. “Men to a great extent believe what they want to —although I see in that no ba. is for a philosophy that tells us what we should want to want," he once wrote. "We Can Not Live Dreams* The law. he held, as a special branch of human knowledge “is more immediately connected with all the highest interests of man than any other which deals with practical affairs.” “The main part of intellectual education is not the acquisition of facts but learning how to make facts live. No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen, to dig by the divining rod for springs which he may never reach. “We can not live our dreams. We ore lucky enough if we can give a sample of our best and if in our hearts we can feel that it has been nobly done. Beyond Grasp of Man “If we think of our existence not as that of a little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us our on’ * but our adequate significance. “A grain of sa has the <=ame, but what compe. person supposes that he undt nnds a grain of sand? That is a *uch beyond our grasp as man. “If our imagmatio is strong enough to accept the vi on of ourselves as parts inseve . ble from the rest, and to extend our final interest beyond the boundary of our skins, it justifies the sacrifice even of our lives for ends outside ourselves. The motive, to be sure, is the common wants and ideals that wre find m man. Philosophy Opens Hopes “Philosophy does not furnish motives, but it shows men that they are not fools for doing what they already want to do. It opens to the forlorn hopes on winch we throw ourselves away, the vista of the farthest stretch of human thought, the chords of a harmony that breathes from the unknown.” “Why should we employ the energy that is furni.'iied to us by the co-mos to defy it and shake our fist at the sky? It seems to me silly.” Former Justice Holmes was found always holding with the right of labor to organize. One of his earliest and pioneering dissenting decision t 1904 was in the case of Lochner v. New York. A New York law had prohibited employment in bakeries for more than io hours a day. A Utica baking concern, twice convicted, argued the law denied “equal protection.” The majority of the court held that "clean and wholesome bread does not depend upon whether a baker works *0 hours a day or only 60 hours a t.-eek.” Justices Holmes. White. Harlan arid Day dissented. “This case.” wrote Justice Holmes, “is decided upon an economic theory which a

Ctab OicKa'id There most be more quality for t-3 your money in Crab Orchard, pa because more people choose it end buy it. ■KTW t u-fjaw ■ ;iU: A Good Ovid* to Good Wtmkoy - Z* # HM A mom on Modicmol Spirit* Corporation, loulivillo Ky.; Soltimoro.Md.

large part of the country does not entertain.” He wrote he did not conceive it to be his duty to study the theory, ”... because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.” Presents Own Theory Justice Holmes held in this case that the court had previously decided state constitutions and state laws may regulate life in many ways which "we as legislators might think as injudicious, or, if you like, tyrannical as this.” He then proceeded to expound the theory that a constitution is “not intended to embody a particular economic theorv, whether of paternalism ana the organic relation of the citizen to the state or of laissez fa ire.” The Constitution. Justice Holmes held, “is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." ‘Liberty* Misinterpreted He then wrote he believed the w’ord “liberty” in the 14th amendment is “perverted when it is held to prevent the natural outcome of a dominant opinion,” and argued the law limiting working hours should be upheld. Follow mg the Chicago railroad Grille in 1894 Congress passed the F.< i in act providing for arbitra- j t n : disputes between unions and ir.u te railroads. The Louisville & Nashville Railroad appealed from the provision prohibiting discrimination against union members. A majority of the court held the section invalid. Justice Holmes and Mr. Justice McKenna dissented. Ignored Law’s Wisdom “I quite agree that the question what and how’ much good labor unions do is one on which intelligent people may differ,” Justice Holmes wroie.” • • • but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men. but of the railroads and the country at large.” Again in the Chicago vs. Kansas case 1 1914', Justice Holmes held with labor's right to organize. A switchman had been discharged for refusing to give up his union membership. The majority opinion reversed the conviction of the responsible railroad official. “Whether in the long run it is wise for the working man to enact legislation of this sort is not my concern.” Justice Holmes wrote, "but i am strongly of opinion that there is nothing in the Constitution of the United States to prevent it.” Upheld Picketing Attempting to uphold the right of strike picketing. Justice Holmes depreciated efforts to use the 14th amendment “beyond the absolute compulsion of its words to prevent .he making of social experiments that an important part of the community desires . . . even though such experiments may seem futile or even noxious to me.” In the 5-4 decision upsetting the 1916 Child Labor Law to scop interstate shipment of child-made goods. Justice Holmes dissented. The majority held that the lawabsorbed the police power of the states, and expressed the belief that if permitted to stand the law would destroy our system of government. Here again Justice Holmes upheld the power of the Congress to act within the Constitution regardless of consequences. Cited Child Labor Evil “The notion that prohibition is any less prohibition when applied to thinzs now thought evil I do not understand.” the former Justice wrote. “But if there is any matter upon which civilized countries have agreed—far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotion-

: Leaders of Congress Praise Great Career of Former Justice Holmes •His Was One of Brighest Intellects That Has Ever Lived,' Says Senator Norris: Led Nation's Progressives, Says Black. RV United Press WASHINGTON. March 6.—Members of Congress joined today in paying tribute to Oliver Wendell Holmes, who died at 2:15 a. m. after a i battle against pneumonia. “I can hardly express myself.” said Senator George W. Norris (Rep., Neb.). “Hs was one of the brightest intellects that has ever lived. He was not only a great judge, he was also a philosopher, and it takes a

was a philosopher, and it takes a philosopher to be a judge.” Sen. Waren R. Austin (Rep., Vt.): “Mr. Justice Holmes’ contri- ; bution to the jurisprudence of the United States will continue to be a living force for the defense and promotion of human rights.” Senator Hugo L. Black (D. Ala.): “He made a great contribution toward the best progressive thought of the nation.” Rep. Hatton W. Sumners (D., Texas), chairman of the House Judiciary Committee: “He was a man who believed in a democracy in government based upon a democracy m opportunity. He was a great ; jurist and a great patriot. I came from the Confederate side, but j nevertheless I know he also was a brave soldier.” Rep. U. S. Guyer iR., Kas.), ranki ing member of the House Judiciary Committee: “His death removes a

Liberalism Stamps All Opinions of Great Jurist

Paragraphs from opinions written by former Justice

Oliver Wendell Holmes: On Refusing to Bear Arms “Surely it shows no lack of attachment to the principles of the Constitution that she thinks it can be improved. I suppose that most intelligent people think that it might be. Her particular improvement looking to the abolition of w f ar seems to be not materially different in its bearing on the case from a wish to establish cabinet government, as in England, or a single house or one term of seven years for the President.” * a tt “ . . . The Quakers have done their share to make the country what it is; that many citizens agree; and I had not supposed hitherto that regretted our inability to expel them because they believe more than do some of us in the teachings of the Sermon on the Mount.”

VAIL MEDALS GIVEN 3 ON PHONE STAFF FOR UNUSUAL DEEDS

Bronze Vail medals, for “acts of noteworthy public service,” have been awarded to three employes of the Indiana Bell Telephone Cos.. Elton E. Brouhard and George L. Logan. Indianapolis cable splicers, and Charles L. Tubby, Linton combination man. The medals are awarded annually as memorial to the late Theodore N. Vail, former president of the American Telephone and Telegraph Cos. Mr. Brouhard and Mr. Logan, working in a dangerous manhole, succeeded in restoring temporary toll service after the Anderson central office had been destroyed bv fire Jan. 29, 1934. They were overcome by gas. but were able to resume their work the following day. The award was given Mr. Tubby for his action in establishing and maintaining telephonic connection with five men entombed 65 feet underground in a mine fire at Bloomfield, April 3, 1934. NURSING CURRICULUM TO BE FORMED SOON 150 Members of Association Hear Presentation at Hospital. Anew curriculum for nursing schools, based on an activity analysis of nursing, presented by Miss Ester McClain last night at the meeting of the Central District Nurses’ Association, will be formed soon. The meeting, which was held in St. Vincent's Hospital, was attended by approximately 150 nurses. DR. WICKS ‘IMPROVED’ Unitarian Church Pastor Reported j Recovering at Hospital. The condition of Dr. Frank S. C. j Wicks, pastor of All Souls’ Unitarian Church, was reported as slightly improved today. He has been critically ill with erisypelas at St. Vincent's Hospital. ! ally aroused—it is the evil of premature and excessive child labor. “I should have thought that if we were to introduce our own moral conceptions, where in my opinion i they do not belong, this was pre- i eminently a case for upholding the : exercise of all its powers by the United States.” In the field of free speech, Justice Holmes always was on the side of upholding the rights granted by the Constitution. His strongest “free speech” decision, again a dissent, probably was in the Abrams case arising in New York City during the World War, when a group of Russian-born persons printed thousands of leaflets and flung them from a roof-top. The offenders were convicted and sentenced to 20 years. Justice Holmes could see nothing seditious in the leaflets. In fact he said a patriot "might think we were wasting money on aeroplanes and might advocate curtailment with success.” “Now nobody can suppose,” Justice Holmes wrote, “that the publication of a silly leaflet by an unknown man. without more, would present any immediate danger. “In this case sentences of 20 years imprisonment have been imposed for publishing of two leaflets that I believe the defendants had as much right to publish as the government has to publish the Constitution of the United States now 1 vainly invoked for them.”

THE INDIANAPOLIS TIMES

very romantic and useful figure from public life. He w-as a great judge. I used to go over to the court just to hear what he had to say.” Rep. Bertrand Snell (R., N. Y.), minority leader of the House: “He probably was the outstanding American jurist of the present age. Probably no member of the court had the respect, love and admiration of the American people more than Justice Holmes.” Senator Henry F. Ashurst (D., Ariz.), said: “He w-as a brave soldier. He was an upright judge, a brilliant scholar and lived a glamorous life.” Senator Martin a. Logan (D., Ky.), former Kentucky Supreme Court judge: “He was one of the greatest judges among many great judges the United States has produced. The people will be grieved at his passing.”

On a Fair Trial “Mob law does not become due process of law by securing the assent of a terrorized jury.” tt tt tt “It is our duty to declare lynch law as little valid w r hen practiced by a regularly drawn jury as when administered by one elected by a mob intent on death.” On Freedom of Speech “A man can not be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting public feeling against a judge for w'hat he already has done.” n it tt “I do not suppose that any one would say the freedom of written speech is less protected by the First Amendment than the freedom of spoken words. Therefore, I can not understand by what authority Congress undertakes to authorize any one to determine in advance that certain words shall not be uttered.” On State Rights “We fear to grant power and are unwilling to recognize it when it exists. The states very generally have stripped jury trials of one of their most important characteristics by forbidding judges to advise the jury upon the facts and when Legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police powers or that the business concerned has been dedicated to a public use. a tt a "... I do not believe in such apologies. I think this is a proper case to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some provision of the Constitution and that the courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.” tt tt tt “If people—speaking by the authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will.” On the Constitution “Constitutions are intended to preserve practical and substantial rights, not to maintain theories.” tt tt a “But the provisions of the Constitution are not mathematical formulas, having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” tt tt tt “A word is not a crystal, transparent and unchanged; it is the skin of a living thought that may vary greatly in value and content according to the circumstances and the time in which it is used.”

Saturday ©ay! 20% Discount Immediate action will save you If” II Pi* $5.90 to sll on Ere clothes-so- 4neiJ& 4# far fe* $29.50 Fabrics . Now $23.60 $34.50 Fabrics • Now $27.60 $39.50 Fabrics . Now $31.60 $55.00 Fabrics . Now $44.00 KAHN TAILS7RINOCC2 2nd Floor Kahn Bldg., Meridian at Washington

GREAT LIBERAL DIES OUIETLY IN CAPITAL HOME Indiana Joins Grieving Nation in Paying Tribute to Justice Holmes. (Continued From Page One) secretary, and Dr. Thomas A. Claytor, who had invoked all of the science of modern medicine to aid the patient. At 2:20 a. m. Mr. Howe opened the door of the house. The night was chill and the street lights circled with a thin mist. “The justice is dead.” he said simply. “He died at 2:15 a. m.” Ideals to Live Long Justice Holmes died just as his philosophy, nurtured in a life that spanned in its long years the rise of America from an agricultural province to an industrial empire, was coming into full flower. It was Justice Holmes’ philosophy, liberal and humanitarian, as expounded in nearly 30 years of dissenting opinions on the Supreme Court bench, which provided much of the basic framework of the New Deal. His humanitarian and liberal interpretations of the Constitution will live long in legal history. He faced death as calmly and philosophically as he had lived his long and useful life. His Last Gesture Well as he knew the end most probably was inevitable, Justice Holmes did not die without one gesture, impish as any of his life. It was a gesture American to the core. Prof. Frankfurter had come early in his illness to his bedside, worry and concern etched deep in his face. Nurses and physicians hovered about. There was a fuss and bustle such as never before had come into Justice Holmes’ quiet, simple life. As Prof. Frankfurter stood beside him, the great justice lifted his hand to his face. He placed the thumb agains f his nose and solemnly waggled his four fingers. It was his last gesture. It was, in a manner, his jesting farewell to a life he loved so well and friends in every walk of life who held him in such high esteem. Indiana Pays Tribute Many prominent jurists, attorneys and leaders in all walks of Indiana today joined in eulogizing the life and record of Oliver Wendell Holmes, great former justice of the United States supreme Court. All agreed that Justice Holmes’ legal opinions will help to guide the present and the future of the United States. Gov. Paul V. McNutt today made the following statement regarding the death of Mr. Holmes: “Naturally, I join the rest of the world in mourning the passing of a distinguished jurist and a truly great man. All my life, as a lawyer, I have admired Justice Holmes’ legal talents from afar. He unquestionably was one of the greatest jurists the world ever has known. They are not made in hi" mold very often.” Mayor John W. Kerr,; “He was such a great man and I feel so keenlfi/ about his death that I find it difficult to make a comment at this time. Asa justice of the Supreme Court, he could be classed only with John Marshall. He was unique in that he combined wfiat was probably the greatest legal mind of our time with the ability to express his decisions in a lucid and beautiful style. He was really one of the greatest writers of modem English prose.” Wilde Joins in Tribute Carl Wilde, president of the Indianapolis Bar Association: “Ir* the death of Justice Holmes the ..egal profession loses one of its greatest individualists. Neither popular trends nor mere considerations of expedience ever influenced the men-

Experienced prefertti.se SAFE BUSES,?! Speed Controlled Expresses J Heated by Hot Water. AY7 LOW FARES \W , NEWYORK (Fastest service) sl4 • PHILA. sl3 ' COLUMBUS 4.25-ST.LOUIS $5-PITTSBRGH 7.25 . BOSTON Sl7-DAYTON 2.75-LOS ANGELES32.SO —savings to all points U. S. or Canada. ■ Phone Riley 9666 t

SOUTHPORT CLASS TO PRESENT COMEDY

HfL.

Barbara Dewsnap

“Shirt Sleeves,” a three-act domestic comedy, will be presented at Southport High School at 8 Friday night by members of the school's speech class. Barbara Dewsnap has the role of Mrs. Franklin Rand, member of a family fighting its way back to solid financial ground after the crash of 1929. Kenneth Mitchell is teacher of the class.

tal processes of that great jurist. He held unswervingly to the course dictated by his ideas of right and wrong. One of the dominant, colorful personalities of our times has passed beyond.” Arthur L. Gilliom, former state Attorney General, who, as an attorney had pleaded cases before Justice Holmes: “The justice perhaps contributed more to the present viewpoint held by the majority of the Supreme Court on constitutional questions than any other judge who ever sat on the Supreme Court bench. His theory always was to permit the people through their legislative bodies to experiment in government unless it violated the plain terms of the Constitution and that, perhaps, is as sound a policy as any.” “Profound Loss,” Says Gause Fred C. Gause, vice president of the Indiana Bar Association: “The death of Justice Holmes Is a profound loss to the judicial profession of the entire country. He was one of the greatest jurists of the century. Justice Holmes previously was known as a dissenter, but many of the principles he announced are now generally recognized as proper governmental policy.” Attorney Samuel Miller: “He was a great judge and a great man. Once when I was before the Supreme Court he remarked in the course of the discussion, ‘A word is the skin of a thought.’ That is a good illustration of how he could express a lot in a few words.” BOY, 2, LOSES FINGER Older Brother Chops Off Digit With Ax at Play. Two-year-old Donald Saw-yer, 542 Vinson-st, is without a right index finger today, because his brother, Shelby, 8, accidentally cnopped it off with an ax late yesterday while the two were playing in their yard. Donald was treated at City Hospital.

Keep Them Secure with life-insurance Protection This Contract Meets You Half-Way In full force at once (1935). From 1940 you pay at the rate shown in the table. Until then, OXLY HALF THAT RATE. Annual rate for $5,000 Firet 5 years 6th year and thereafter Age Age Age Find the figure 20 $91.10 31 $121.50 425180.90 for your age 21 93 - 40 32 125 * 50 43 188 * 70 . l 22 95.80 33 129.60 44 ¥96.70 in the table—then 2 3 98.10 34 134.10 45 205.30 24 100.50 35 138.80 46 214.50 25 103.00 36 143.80 47 224.10 DIVIDE BY 2 26 105.10 37 149.10 j4B 234.50 27 107.90 38 154.70 49 245.50 $ 28 111.10 39 160.70 50 257.20 nnmwlhj 23 114,40 40 167.00 Alsoissuedat annuau y |3O 117,70 41 173.90 ages 51 to 60 j This policy has helped thousands in the last ten years . More popular than ever to-day . The Sooner You Start the Better Consult Local Agent or Office, or Horne Office yfraMial 1J Httßuranrp (Company of Amrrira EDWARD D. DUFFIELD Home Office President NEWARK. NEW JERSEY

S|||||

Kenneth Mitchell

BEN DAVIS CAGE STARJjELEASED Player Accused in Theft Ring Goes Back to High School. Floyd Tabor, alias Floyd Kerns, 18, was returned here today from Brazil, Ind„ to face vehicle taking charges in connection with the activities of an alleged gang of youths accused of participation in auto thefts, holdups and burglaries. Earl Finchum, 20-year-o;d Ben Davis basketball star, another alleged member of the mob, yesterday afternoon practiced with his team in preparation for the regional net tourney Saturday. The athlete was released on his own recognizance by Criminal Judge Frank P. Baker, although a previous charge, filed against Finchum last September, never has been tried in his court. Municipal Judge Dewey Myers had set bond at S2OOO in his court. The warrant sworn out in Criminal Court charged Finchum with the theft of tobacco. He was released on SSOO bond on that charge. After the Municipal Court hearing yesterday. John Dalton, Criminal Court officer, took Finchum from the custody of the sheriff and j brought him before Judge Baker. I Detective Morris Corbin said to- j day that he resented the implica-1 tion in a statement made yesterday j to The Times by C. H. Vance, Ben | Davis principal, that Finchum had been “framed.” “We arrested Finchum because he violated the law,” said Detective Corbin.

PAGE 3

'WATERWORKS OFFICIALS OPEN STATE_PARLEY Three-Day Session Starts; Prominent Speakers on Program. The three-day session of the In--1 diana section, American Water ’ Works Association, opened today at I the Antlers. At 1 the purification plant operators’ school was to be |in sessions at the Indianapolis Water Cos. filter plant. Principal speakers tomorrow will include Dr. Verne K. Harvey, state health director; F. M. Logan. Public Works Administration state engineer; H. O Garman. Indianapolis, consulting engineer; Cyrus H. Bird, Detroit, engineer; Lawrence V. Sheridan. State Planning Board consultant; W. H. Frazier, State Conservation Department sanitary engineer; Dr. Thurman B. Rice, assistant state health director; H. E. Jordan, national president of the water works body, and Paul Hansen, Chicago. J. H. Armington, Federal meteorologist, and Wayne Coy, Governor’s Unemployment Relief Commission director, will be the headline speakers Friday. The section's bt nonet will be tomorrow night. Speakers at the purification school this afternoon were to discuss the various phases of filtration. Officers of the Indiana section are C. C. Foutz, La Porte, president; C. K. Clav.Tt, Indianapolis, vice president: John A. Bruhn, Indianapolis, assistant secretary’; H. S. Morse, Indianapolis, national director, and Bernard H. Jeup, Indianapolis, secretary-treasurer. The Indiana section is affiliated with the state public health division. Meetings are open to the public. FAMED LAWYER SHOT IN PARIS PISTOL DUEL Exchanges Shots With Editor After Quarrel Over Article. Bit United Press PARIS, March 6.—Cesar Campinchi. famous lawyer, was wounded in the ar min a pistol duel today with Horace De Carbuccia. editor and son-in-law of Jean Chiappe, former prefect of police. The duelists exchanged four shots at 35 paces in the Parc Des Princes Stadium, on the edge of the city, as the result of a dispute which arose from articles published in the Gringoire, of which Carbuccia is editor. Campinchi regarded the articles as an insult and challenged. RHEUMATISM RELIEVE PAIN IN 9 MINUTE* To relieve the torturing pain of Rheumatism, Neuritis, Neuralgia or Lumbago, in 9 minutes, get the Doctor’s Prescription NURITO. Absolutely safe. No opiates, no narcotics. Does the work quickly —and must relieve your pain in nine minutes Qtt money back at Druggists. Don’t suffer. Use NURITO today. —Advertisement.