Dissenting Opinion. The honored Harlan, of the supreme court of the United States, in the Standard Oil and Tobacco Trust cases, rendered a not only distinguished but immortal dissenting opinion. In that opinion the court's judgment was most severely criticised because of judge-made law in amending the Sherman act, under the mask of interpretation. * After many years of public service at the National Capital, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad in our land, a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction. To overreach the action of Congress merely by judicial construction, that is, by indirection, is a blow at the integrity of our governmental system, and in the end will prove most dangerous to all. Mr. Justice Bradley wisely said, when on this bench, that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of legal procedure. Boyd v. United States, 116 U. S., 616, 635. We shall do well to heed the warnings of that great jurist." Standard Oil Co. v. United States, 221 U. S., 104. I regret that I am unable to adequately express my hearty endorsement of the wise and wholesome policy announced by Judge Harlan. If Judge Harlan's dissent is just condemnation of judge-made law, what is the proper measure of just condemnation of judge-made constitutions? The judge-made statute can be easily and readily amended, but the judge-made constitution is as Syllabus. permanent as the people-made constitution, and more, for it will probably have more protection from the courts. Constitutional provisions are too often devitalized in the name of judicial construction. They are too often bled to death and nullified by judicial order and decree. Of what avail is the legislative or constitutional act if the teeth be all pulled out of it by judicial interpretation? The doctrine announced in the case at bar has not yet become the settled law of the state of Ohio. I have discussed this question at so great length, because I still indulge the hope that this court, with the aid of an enlightened public opinion, may finally settle the law along the lines of old landmarks, that all political power is inherent in the people and should be exercised by all branches of the government, not to destroy, but to defend, the people's rights and protect the people's powers. DRISCOLL V. THE CINCINNATI TRACTION THE STATE OF OHIO V. TUTTLE. Judgment should not be reversed for misconduct of counsel, when— Effect of retraction by counsel-And admonition of courtCourt procedure. 1. A judgment should not be reversed for such misconduct of counsel for the prevailing party as tends only to discredit the administration of justice without subjecting the claim of the adverse party to prejudicial considerations not involved in the case. For misconduct of that character the trial court is authorized to apply more appropriate correctives. Opinion of the Court. 2. A judgment should not be reversed for misconduct of counsel for the prevailing party in alleging facts which no evidence tends to establish if from the nature of the case the retraction of counsel and the admonition of the court, it appears that the natural effect of the misconduct has been averted. (Nos. 13778 and 13826-Decided May 6, 1913.) ERROR to the Circuit Court of Hamilton county. ERROR to the Circuit Court of Marion county. Facts are stated in the opinion. Messrs. Stricker & Johnson, for Driscoll; Messrs. Kinkead & Rogers, for the traction company. Messrs. Mouser & Maloney and Mr. Charles L. Justice, for the state; Mr. H. E. Hill and Messrs. Crissinger & Guthery, for Tuttle. BY THE COURT. However wide may have been the difference between the original cases out of which these proceedings in error arose, judgments of reversal were rendered by the circuit courts in both cases because of the misconduct of counsel for the prevailing parties, and the propriety of the judgments of reversal should be tested by considerations which are substantially identical. In both cases the misconduct for which the circuit court reversed the judgments consisted of remarks, obviously improper, which counsel made in presenting the case to the jury. Remarks of counsel to jury always constitute misconduct when they either tend to diminish respect for the administration of justice or to subject the claims of the adverse party in the Opinion of the Court. case to prejudice not warranted by the case actually presented for determination. But misconduct of the former character may constitute a very grave offense against the administration of justice without entitling the adverse party to a new trial if he suffers only in common with his fellows, all of whom are entitled to have proceedings in courts conducted with such decorum and propriety as to win the respect of all observers. For offenses of that character a new trial is an expensive and inappropriate remedy to which the judge of the trial court is not driven by any necessity, there being within his power modes of correction which will both secure the orderly conduct of procedure and avert the delays incident to mistrials. But for such remarks as naturally induce a jury to test the case of the adverse party by considerations not presented in or suggested by the evidence a new trial is the indispensable corrective if such improper effect is not averted by the court or counsel or both. The records show that misconduct of both kinds was committed in the trial courts in the present cases. In the case firstly entitled, Miss Driscoll recovered a judgment in the trial court against the traction company for a personal injury alleged to have been received by her while a passenger on one of its cars caused by the negligent starting of the car by the conductor while she was in the act of alighting therefrom. In addressing the jury after the testimony had been adduced her counsel said: "Of course, he paid no attention to her. He rang the bell thinking she was off just as it happens every day, the car started before she was off and Opinion of the Court. this accident happened." Assuming that evidence of other incidents of like character would have been competent there was no evidence of such other incidents in the case. Objection to the remark was promptly made by counsel for the company, in response to which counsel for Miss Driscoll as promptly said: "Gentlemen of the jury, disregard my remarks," and the court admonished them that the evidence to establish the facts of the case could come only from the witness stand. It is entirely obvious that this observation of counsel unsupported by any evidence in the case tended to the prejudice of the defendant. What could be done to avert its natural effect was promptly done by both offending counsel and by the court. The withdrawal of the remark by counsel and the admonition of the court certainly informed the jury that the remark so improperly made should not have any influence whatever in determining their verdict. The proceedings of courts frequently require the conclusive assumption that jurors regard the instruction of the court as to matters of this character. If, over the objection of counsel for the traction company, evidence of other like incidents had been admitted and the court had subsequently concluded that the admission was improper and had directed the jury to disregard it, it would hardly be doubted that the instruction to disregard the evidence would have cured the error in its admission. And we cannot say, nor could the circuit court say, that effects of the improper remark of counsel remained in the case to operate to the prejudice of the defendant. |