Page:Harvard Law Review Volume 32.djvu/266

230 230 HARVARD LAW REVIEW citizens; as lawyers it is a duty to map out the path by which such uniformity in result is reached. Justice Holmes, the Voltaire of our bench, once frankly said in an opinion that the Supreme Court never decided anything that could be avoided. The wisdom of the practice, and some errancy of statement is well illustrated by the case of Dred Scott and its aftermath; but when it comes to due process nowadays it is strictly true. The plaintiff must show damage, suits by amici popuH need not be decided ;^^ the damage must be in the present tense, an expectation of future loss is not enough ;2^ loss in only one department of an integral business has been used to prevent consideration, for the whole business may be reasonably profitable;^* any possible statutory construction, however surprising to the plaintiff and unheard-of in daily Hfe, is enough to prevent uncon- stitutionality;^^ a failure to ask for a rehearing,^" or actual ap- pearance when a defective statute provided for none,^^ may put an otherwise meritorious plaintiff out of court; and if hearing had it is enough if it be held after tax already laid;^^ and a failure to go to the highest state court before troubUng the Supreme Court may delay if not defeat relief.^ These few and recent illustrations might be much extended, and some comparison with other heads of jurisdiction induce beUef that more pitfalls have been prepared for him who complains of undue process than for any other litigant, in what is usually a court of generous practice. If decision cannot be avoided, presimiptions are next considered, — such as the prima facie constitutionality of any act; that what is enacted expresses the public policy of the state, or that what is complained of is matter of discretion, — which is not reached by the clause .^^ A hardy remnant, however, demands answer to the ^ Cusack V. Chicago, 242 U. S. 526 (1917). ^^ Knoxville v. Water Co., 212 U. S. i (1909); Willcox v. Consolidated Gas Co., 212 U. S. 19 (1909). 28 C. & O. Ry. Co. V. Commission, 242 U. S. 603, 604 (1917). '* Vandalia R. R. Co. ti. Commission, 242 U. S. 255 (1916). '1 Kryger v. Wilson, 242 U. S, 171 (1916). ^ Embree v. Kansas District, 240 U. S. 242 (1916). ^ Prentis v. Atlantic Coast Line, 21 r U. S. 210 (1908). " St. Louis and Kansas City Land Co. y. Kansas City, 241 U. S. 419 (1916).
 * Pennsylvania, etc. Co. v. Gold, etc. Co., 243 U. S. 93 (1917).