Appendix — United States v. Mine Workers
Supreme Court brief1947
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wy or'™~ cn, 7? ¥ if OF. .
SUPREME. C COURT OF THE UNITED STATES.
OCTOBER TERM, 1946
Nos. 759, 760°
UNIFED STATES OF AMERICA,
Petitioner
rs.
UNITED MINE WORKERS OF AMERICA, a. UNtxcorporatienp Asso
CIATION, and JOHN L. LEWIS, INpinvipuaney anp AS Presipentr oF
-THeE Unirep Mine Workers ‘or AMErIC x,
7 ° : e No 781 ; rt spondents
UNITED MINE WORKERS OF AMERICA, yx Uxisconm vrity
ASSOCIATION,
7 Petitioner,
eM,
UNITED STATES OF AMERICA, :,
E Res pondeout
-- No. 782 ein
JOHN L. LEWIS, buiieeaias ALLY AND AS PRESIDENT OF THE Usrrrp Mine
’ WorKeErS oF AMPRICA,
’ x ‘ Petsilioner,
C8,
| NITED STATES OF AMERICA,
No ‘811 ; | : Re spondent
UNITED MINE WORKERS OF AMERICA, ax Usixcoxronarep Asso-
iaTION, and JOHN LO LEWIS, Espiviptatcy asp as Prestpent oF
ryk Unitep Mink WorKeks oF AMERICA,
Petitioners,
A,
UNITED STATES OF AMERICA,
Re sponde yt
ON WRITS OF CERTIOR ART NM THK UNITED STATES COURT OF APPEALS POR THE
DISTRICT OF COLUMBIA
APPENDIX TO BRIEF FOR UNITED MINE WORKERS
OF AMERICA AND JOHN L. LEWIS
Ot Counsel ; . ¢ Weniy K. Hopkins,
JoserpnH. A. PApway. EpMtUNp BURKE
lieNkY Katser, T. C. Bowssenp,
James A. GLENN, . HARRISON Comns,
: 730 Bowen Bualding, . M. EF. Boiarsky,
Washington ¥. D¢ loth and I Streets NOW,
7 Washington 5. UD. ¢
: ao) . Counsel for United Mine Workers
”
; a of Amenca and Johu Lo Lew
~~
* INDEX
Report of House Committee on the ition con-
cerning Bill H. R. 5315 (H.R. Rep. No. 669, 72d
Congress, Ist Session) -
Report of Segate Judiciary Committee concerning
Bill 8. 935 (S. Rep. No. _ 72d Congress, Ist Ses-
sion) . .
4
S% .
72d Congress ~ :; : Report
Ist Session HOUSE OF ‘REPRESENTATIVES 3 No. 669 .
DEFINE AND LIMIT THE JURISDICTION OF
J COURT SITTING IN EQUITY
Marcu 2, 1932. —Referred to the House Calendar and ordered to be printed g
Mr. Seana from the Committee’ on-the J udiciary, ‘sub-
' mitted the following’
REPORT
. "(To accompany H.'R. 5315]
The Committee o1 the J udiciary, to whom was referred
the bill (H. R. 5315). to amend the Judicial Code and to de-
' fine and limit the jurisdiction of courts sitting iequity, and °
for other purposes, after hearing (serial 3).and considera- —
. tion, reports the same favorably with amendments and
reeommends that the bill as amended do pass.
The committee amendments. are as follows:
Page’, lirie 7,.strike out the word ‘‘of’’ following the - .
word “order”? and insert in lieu thereof the word ‘‘ or’
Page 3, line 3, after the word ‘‘enforceable’” add the fol-
-Jowing words “in any court of the United States’’. eae
Page 3, line 5, after the word ‘‘any’’ insert the word
“‘*such’’, asd ‘i in the same line strike out the words “at the
United States”. ;
' Page 3, line 24, after the word in? add the words ‘any |
case’’ and: strike out the word-‘‘cases’’
s
Page 5, line 15, strike out the words “and 1 no association ae
or organization’’.
Page 5, line 21, strike out, the period after the word
“thereof ’ -and insert the following words: ‘‘and .the lia-
bility of any such association or organization for unlawful bie
_ acts of itsmembers shall be similarly limited”’ follow ed by
a period. é
- Page 6, line 5, after the word “been” insert the sei
. words: sthreatengd 7",
Page 6, line 6, after the word “‘ restrained”’ distin out the
semicolon and insert thé following words: ‘‘but no injune-
tion or temporary restraining order shall be issued on
. e , *
1b : ‘
t
4 ‘ e? ” .
—
account ofa any threat or unlawful act-except against the
person or persons, association or organization making the |
threat or committing the unlawful act or who attually au-
thorized it or ratified it after actual knowledge thereof” to
be followed eo a semicolon.
Page, line 9, after the word ‘‘security”’ insert the weal
‘‘in an amount to be fixed by the court’’,
Page 7, line 21, after the first word ‘‘surety’’ add the fol-
lowing words: ‘*upon a hearing to assess damages of which |
hearing complainant and surety shall have’ reasonable
notice’’.
Page 9, line 6, after the word ‘‘cases’’ insert the words
| ‘‘arising under this act in which’? and strike out the word
‘‘where’’.
Page 9, line 7, strike out the words ‘*indirect”’ and ‘for
violation of a restrain-’”,
Page 9, line 8,- strike out the words ‘ ‘ing order or injune-
tion issued by’’ and insert in lieu thereof the word ‘‘of”’.
Page 9, line 12, strike out the word ‘‘requirement’’ and
insert in lieu thereof the word ‘‘right’’, and in Jines 12 and
13 strike out the words ‘‘be construed to”.
Page 9, line 19, strike out the words ‘is authorized to”’
and insert inlieu thereof the word ‘‘may”’
Page 9, line 25, strike out the word ‘“provided”’ and insert
in lieu thereof the ween ‘tis provided by law’’ followed by
_a period. Re :
Page 10, strike. out all jof line 1 and line 2 2 dow n ad and
including the word “Code”. F }
Page 11, line 11, strike oy the word ‘‘and’’ and insert in
lieu thereof the word | ‘tg it ’ and strike out the words ‘‘or
concerning”’
Page 11, strike out all of line 12 dnd all of line 13 down to:
and including the word ‘‘employee’’.
Page 11, line 20, strike out the word ‘peal wat
insert in lieu thereof the word ‘‘part’’, and strike out, in
lines 20 and 21, the words ‘‘or the’ application Ahereof to
- any person or circumstances’’
/
Page 11, line'21, after the w word ‘held’ insert the words
. igitequatitettens an otherwise’’
Page 11, line 22, strike out: the word ‘< remainder’* and.
_ insert in lieu thereof the words ‘‘ remaining part”’, and in
3
"Imes 22 and. 93 stfrke out the words “and the application
of such provisions to other persons or circumstances’’
This bill is the so-called anti- injunttion bill. It is the
outgrowth of years of agitation in the Congress for restric--
tion upon the powers of Federal equity courts in the issu-
ance of injurictions in labor dispufes. Hearings have been
heid by congressional committeesgover a period of years
and the facts adduced have brou@t about an almost una-
nimity 6f opinion that such powers of the Federal courts
have been: exercised to the detriment. of the. public. welfare
and should be curbed.
The questions are sociologic and econoinic as well as legal
and jurisdictional.
The limitation of the.jurisdiction of FederaY courts to
issue ihjunetions in ‘laboy disputes has be subject of
public discussion for many years. It is fdff to say that
public sentiment on the subject has reached the conclusion
that some such limitation is-absolutely riecessary. Both of
- the great political parties in their. last national platforms
have promised remedial legislation upon the subject. The
last Republican. National. Convention at~- Kansas City
adopted a plank on/the subject, as follows:
*
The party favor if reedom in wage contracts, the right of
collective bargaining by free and responsible agents of their
own choosing, which develops and maintains that purpose-
ful, cooperation which gains its chief incentive through vol-
unt: ary agreement.
We believe that injunctions in laber disputes have in some
instances been abused and have giver rise to a serious ques-
tion for le -gislation.
sFollowing this, the last Democratic National Conv ention
at Houston, Tex.,’in its platform, made the following
promises :
(a) We favor ‘the principle of caltectine bargaining and
the Democratic principle that organized labor should choose
its own representatives without coercion or interference.
(b) Labor is not a commodity. Human rights _ riust be
safeguarded. Labor should be exempt from the operaticn
of antitrust laws,,
=
(c) We recognize that legislative and other investiga- |
tions have shown the existence of grave e in the issu-'
ance of injunctions .in labor disputes. No injunctions
should be granted in labor disputes except upon proof of .
threaténed irreparable injury and after notice and hearing,
and the injunction should be confined to those acts which do
directly threaten irreparable injury. The, expressed pur- |
pose of. representatives: of capital, labors and .the bar to
~ devise a plan for the elimination of the present evils with
respect to. injunctions must be supported and legislation
designed to accomplish. these ends forfnulated and passed.
The purpose of the bill is to protect the rights ‘of labor in
the same manner the Congress intended when it enacted the
Clayton Act, October 15, 1914 (38 Stat. L., 738), which act,
by reason of its construction and application by the Federal
courts, is ineffectual to aeeomplish the congressional intent.
Section 1: Section 1 provides that no United States court .
shall have jurisdiction to an injunction in a,case
growing out of a labor dispute eXcept in strict conformity
with the provisions of the act, and further that no such in-
junction shall be issued contrary ‘th the public policy de-
clared in the act..
The Constitution of the United States in Article III, see-
tion 1, provides:
The judicial power of the United States ar be vested
in one Supreme Court and in such inferior courts as the
Congress ‘mayfrom time to time ordain and establish.
The provisions of the bill are expressly limited (see. 13
{d)) to courts whose jurisdiction has been-or may be con-
ferred by the Congress, under the foregoing provision of the -
-Constitution. Bhe Congress having the power to establish,
~ and confer jurisdiction upon, the courts in question, it can
~ not be questjoned that it has the power to restrict er curtail
the exercise of their powers,.as proposed in this bill.- The
Supreme Court of the United States has clearly recognized
that this is the law in Kline v. Burke Construetion Co. (260
U. S. 226, 234), (4922), wherein the court says that—. ;
~ Only, the jurisdiction of the Supreme Court is derived
directly from the Constitution. Every other court created
5
- by the General Government derives its jurisdiction wholly
from the authority of Congress. That body may give, with-
hold, or restrict such jurisdiction at its discretion provided
~ it be not extended beyond the boundaries fixed by the nas
stitution. (Italics supplied) .
This case involyed the jurisdiction of the United States"
District Court in cases depending upon diverse citizenship ;
and the Court continued (p. 234) as follows:
The Constitution simply gives to the inferior courts .
capacity to take jurisdiction in the enumerated cases, b
‘it.requires an act of Congress to confer it. (Nashville #
Cooper, 6 Wall. 247, 252, 18 L. ed. 851, 852.) And the j juris-
diction, having been conferred, may, at the will of Congress,
be taken away in whole or in part; and, if withdrawn with-
out a saving clause, all pending cases, though cognizable
_ when commenced, must fall. =e
Concerning the so-called inherent power. of the courts to
punish for contempt, the following is the state of the law:
The judiciary act of September 24, 1789, creating United
States district courts, conferred upon them the power to
punish for contempt in the following Janguage:
The said courts shall have power to impose and adminis-
- ter all necessary oaths, and to punish, ‘by fine or imprison-
ment at the diseretion of the court, contempts of their
authority. 3
‘As early as 1831 the Congress limited this power by the
act of March 2,:1831, as follows:
The power of the several courts of the United States to
issue .attachments and inflict summary punishments for
contempts of court shall not be construed to extend to any
case except thesnisbehavior of any person or persons in the
presence of the said courts, or so near thereto as to obstruct
the administration of justice, the misbehavior of any of the
officers of the said courts in their official transactions, and
the disobedience or.resistance by any officer of the said
courts, party, juror, witness or any other person or persons
6 .
to any lawful writ, process, order, rule, decree, or command-
of the said courts (4 Stat. L. 487)-— 3
which is now section 385, title 28, oer 10, United States
Code:
Sec. 385. The said courts shall have power to impose and
administer all necessary oaths, and to punish, by fine or.
imprisonment, at the discretion of the courts, contempts of
their authority. Such power to punish contempts shall not
be construed to extend to any cases except the misbehavior
be construed to etxend to any cases except the misbehavior -
of any person in their presence, or so near thereto as to
obstruct the administration of justice, the misbehavior of
-any of the officers of said courts in their official transactions,
and the disqpedience or resistance by any such officer, oy
by any party, juror, witness, or other person to any lawful
writ, process, order, Tule, decree, or command of the am ee
courts. ;
hiaillinn of the act of March 2, 1831, the shieidauké Court, : i
in Ex parte Robinson (19:Wall., 505,513), said:
But the power has been limited and defined by the act of
Congress of March 2, 1831. * * * It limits the power of
these courts in this respect to three classes of cases:-1,
where there has been mishehavior of,a person in the pres- .
ence of the courts, or so near thereto as to obstruct the.
administration of justice; 2, where there has been mis-
behavior of any officer of the courts in his official transac-
~ tions; and, 3, where there has been disobedience or resist-
ance by any Officer, party, juror, witness or other person, -
to any lawful writ, process, order, rule, decree, or command
of the court:. As thus seen, the power of these courts in
the punishment of contempts can only be.exércised to insure
order and decorum in their presence, to secure faithfulness
on the part of their officers in their official transactions, and
to enforce obedience to their lawful orders, da crassel and
processes.
~
Section 21, of the Clayton Act, supra . (see. 386, title 28,
U.S.C.) is as follows:
Sec. 21. That any person who shall willfully disébey.any —
lawful writ, process, order, rule, decree, or command of any
»
ae
district court of the United States or any court of the Dis-
- trict of Columbia by doing any ‘act or thing therein, or
thereby forbidden to.be done by him, if the act or thing so
done by him be of such character as to ¢onstitute also a
criminal offense under any statute of the United States, or |
under the laws of any State in which the act was committed, |
shall be proceeded against for his said contempt as heréin- .
after provided.
~~
Sections 22, 23, ‘and 24 of the Clayton Act (now Sine tit
388, and 389, title 28, U. S. ©.) provide for procedure i in
cases of contempt and grant to the accused a trial by jury;
with the exception of contempts committed in the presence
of the court, ete., as stated in section 385, title 28, United
States Code, supra.
The Supreme Court reversing the Circuit Court of Ap-
peals for the Sixth Cireuit sustained the constitutionality of
‘the provisions of the Clayton Act, now embodied in the
United States Code, supra, in the case of Michaelson v..U*S.
ex rel. C., St. P., M. & O. R. Co. (266 U.S. 42, 69°L. Ed. 162).
‘his case involved proceedings, under the Clayton Act of
Octoher 15, 1914, for contempt of certain striking railroad
employes i in violating an injunction against picketing, ete.,
entered in an equity proceeding. Upon answer and return,
the defendants applied.for a jury trial under section 22 of
the Clayton Act; this request was refused and the court pro--
ceeded without a jury; defendants were adjudged guilty of
contempt and senteneéd. The Circuit Court of Appeals af-
firmeé this judgment, and upon-writ of certiorari thé Su-
preme Court considered the constitutionality of sections 21
and 22 of the Clayton Act, and held they were constitutional
_ and that the’provision for a jury trial in certain specified
kinds of contempt was mandatory and not permissive.
In. discussing: the statute, and the so-called inherent power
of courts to punish for contempt, the court said:
+ contended that the statute materially interferes with
e inherent power of the courts, atid is therefore invalid.
hat the power to punish for contempts is inherent in all
courts has been many times decided and may be regarded
as seitled law. It is essential to the administration of jus-
tice. The courts of the Vnited States, when called into
a Merge oa 8 ; yee
| dxistence and vested with jurisdiction over \any subject, at
once become. possessed of the power. So far\as the inferior. .
. Federal courts are concerned however, it is hot beyond the.
| or ority of Congress; .but the attributes w lich inhere in
ed pout eg and are inseparable from it can 1 ‘ither be fbro-
gated nor rendered practically’ inoperative. That it may be
regulated within limits not: precisely. defined may not be
doubted. The statute now under review is of the latter char-
acter. It is of narrow scope, dealing with the single. class
_ where~the act or thing’ constituting the contempt is also a
‘ “erime in the ordinary sense. It does not interfere with the
. LINE ». power to deal summarily with contempts committed i in the .
~~ presence of the court, or so near thereto as ‘to obstruct the -
administration of jugtice, and is, in express terms, carefully.
limited to the cases of contempt specifically defined. But the |
lene ‘simple ‘question presented igwhether Congress may require °
a trial by jury.upon the demand of the accised in. an inde-
pendent proceeding at law for a criminal contempt which is
“alsoacrime. Incriminal contempts, as in criminal cases, the
presumption of innocence obtains.. Proof of guilt miust be -
beyond reasonable doubt; and the defendant may not be.
= _ compelled=to be a witness against himself. . (Gompers v.°
~ Buck’s Stove & Range Co., supra, 221 U.S. 418, 55 L. Ed. 797,
” p.- 444.) “The fundamental characteristics ‘of both are the
satne. Contempts of the kind within the terms: Of. the
ps _ Statute partake of the naturé of crimes in all essential par-
% tieulars. The only substantial difference between such a
proceeding as we have here, and a criminal prosecution by
indictment or information, is that-in the latter the aet céin-
> plained of is the violation of a law, and, in the former, the
~ violation of a decree. In the case of the latter, the accused
has a ¢opstitutional right of trial by jury, while in the former
lie has not, TI statutory extension of this constitutional
right to ‘a class of contenipts which are properly described
as ‘‘criminal offenses’’ does not, in our opinion, invade the:
powers of the courts as intended by the Constitution, or
°' violate that instrument i in any other way. : |
°
Section 2: Section 2 sets forth the public poliey of the.
. United States for the guidance of the courts in their ‘inter- —
¢ _pretation-of this proposed law. + >
e
* . .
. ) ; ’ , #
“9
g |
Congress iia heretofore declared the publie site of the
‘United States for the guidance of fhe courts. Previots acts
of Congress containing wide declarations of policy may be
fourid in the following statutes: Packers and stockyards
act, 1921, Stafford v. Wallace (258 .U. S. 495) ; transporta-
(263 U. S. 456; Railway labor
Brotherhood of Railway Cl
tion act of 1920, Dayton Goose Wag y. Co. v. United States.
(
. futures‘act (title-7, U.S. C., seq, 5 et seq.).
In the Clayton Act (title 29,50. S. ©., see. 52), Congress
read into the law the declaration of policy that ‘‘The labor
of a human being is not a ney or article: of. con-
meree.””
‘This statement of public policy as contained in the bill is
in accordance with the general trend of enlightened public °
opinion and finds adequate support-in the opinions of the
Supreme Court of the United-States. For example, in the
case of American Steel Foundries v: Tri-City Central Trades
Council 257 U. S. 184); the SupremeCourt, in an opinion
by the‘late Mr. Chief Justice Taft, uses language of marked
similarity with the foregoing ssadpenant of public policy,
"as follows :°
t's
Labor unions pre recognized by the C layte ton Act as ad
when instituted for mutual help and lawfully carrying out
their Igitimate objects. They: have long been thus: recog-
_nized-by thé courts.. They wege organized out of the neeessi-
ties of the situation. A single employee was helples8 in
‘dealing with.an employer. He was dependent ordinarily on
his daily wage for the maintenance of himself and.family.
If the employer refused to pav him the wages that he
thought fair, he .was nevertheless 2 cg to leave the em-
~ ploy and to resist: arbitrary and unfair treatment. Union
was essential to give laborers ari opportunity to: deal on
. eq lity with their employer. They umited to exeyt in-
fluene upon him and to leave him in a body, in order, by this v
incon? énience, to induce him to make better terms w ith him,
They werd withlfolding their labor of economic value to
_. make him pay what they thonght it was worth. The right
F tocombine for such a lawful purpose has, in many years, not |
yen denied by any court. The strike: became a lawful in-.
‘#926, 'T. & N. O. Ry. v.
28t U? S. 548); grajn |
fr
: 10 | |
strument in a lawful economic struggle or competition
_ between employer and employees as to the share or division
between them of the joint product of labor and capital. To
render this combination at all effective; employees must
make their combination extend beyond one shop. It is
helpful to have as many as may be in the same trade in the
same community united, because, in the competition’ be- .
tween employers, they are bound to be affected by the
standard of wages of their trade in the neighborhood. .
The inclusion of a statement of public policy in the act
itself is unobjectionable. It tends to remove doubt as to the .
purpose and intention of the Congress and is thereby of as-
sistance to the courts in determinmg questions of interpre-
tation. Moreover,’it is the place to look for a statement of
the public policy involved, because, as said by the Supreme -
Coyrt, the public policy of a State must be ascertained from
its laws: (Vidal v. Girard, 2 Howard 127; License. Tax
Gases,.5 Wall. 462; St. Louis Mining &&. Co. v. Montana
Mining Co., 171 U.S. 650:)
Furthermore, the Congress has heretofore state@ in legis-
lation the public policy in similar manner. For example, as
late as 1925 the Congress declared by statute’ what should
-be the true policy in rate making to be pursued by the ©
Interstate Commerce Commission, to the effect that condi-
tions which at any given time prevail in our several indus-
tries should be considered in so far as it is legally possible
- so. to do, tothe: end that commoditieg may freely move
(43. Stat. B., 80).
__. Section 3: Section 3 is designed to outlaw the so-called —
‘yellow- dog contract. ‘This section provides fhat any promise
which is described therein or which conflicts with the public
policy declared in section 2, is contrary to public policy and
shall be unenforceable in any court, of the United States.
This section includes specifically a promise contained jt
‘ any agreement of hiring whereby either party promises’
not to joint a labor organization or employer organization,
or promises to withdraw from-.an employaent ‘relation in
the event he joins any such organization.
This section in‘ng wise is concerned with interstate com-
merce or the application of the Sherman‘Act and its amend-
YS
| he ay
ments, but the Federal courts obtain jurisdiction in cases
involving such contracts by virtue of diversity of citizen-
ship; and injunctions have been issued in the Federal courts
on the basis of such contracts of employment,
. It is easy to'say that an employee is not compelled to ac-
cept employment and that an employer has the right to make
ment. But, aside from the necessity of providing support
for himself and family always: immediately confronting the
workingman,. and always materially diminishing his free-
~ dom of contract, the vige of such contm&ets, which are be-
coming alarmingly widespread, is that if they are carried to
their ultimate conclusion, they would abolish :trade-union-
_ ism. Indeed that is undoubtedly their purpose, and the
purpose of the organizations of employers opposing this
bill. With this prospect in immediate view, upon the general
adoption of the ‘‘yellow-dog’’ contract, the employee, as -
stated by the late Mr. Chief Justice Taft in the American
Steel Foundries v. Tri-City C. C. case, supra, becomes *‘ help-
less in dealing with an employer’’; and the ‘‘union,’’ stated
by the same authority as ‘‘gssential to give laborers an op-
portunity to deal on equality with their employer,’’ becomes
a thing of the past.
Also, as stated in a more recent decision of the Supreme *
Court of the United States in the case of Texas & N. O.
Railroad Co. v. Brotherhood of Railway. and Steams&ip
Clerks et al. (281 U. S. 548), the opinion being written by-
Mr. Chief Justice Hughes, ‘‘collective action would be a
mockery,’’ because collective action would be impossible so
far as the employee is concerned by virtue of the necessity .
of signing the character of contraat condemned, which pre-
vents a man from joining with his fellows for. collective
action; and the statement contained, in the same decision.
_ that “it has long been recognized that employees are en-
titled to organize for the purpose of securing the redress of
grievances and to promote, agreements with employers re-
lating to rates.of pay and conditions of work’? would be-
come an empty statement of historical fact.
Section 4: Section 4 provides that no United .States
_ .Conrt shall have jurisdiction to issue any injunction in any
. such conditions as he may see fit surrounding the employ-
.
s 1 - me,’ ,
% rc Be res \e
case involving a labor dispute to prohibit any person par- /
ticipating in such dispute from doing, whether singly or in
concert, certain acts. These acts, briefly stated, which@an
. not be enjoined, are the acts of ceasing to work, of becoming
a member of a labor or.employer organization, of ‘paying
ao any strike benefit, of aiding by lawful means: ‘persons par-
ticipating i ina labor dispute who are being proceeded against”
in a suit, of giving publicity to the facts involved in a labor
dispute, whether by advertising, speaking, patrolling, or
by any other method not involving fraud or violence, of.
assembling peaceably to act ‘in promotion of, the interests --
involved in a labor dispute, of advising any erson of any
intention to do any of these’acts, of agreeing with other per-
sons to do or not to do‘any of these acts, and of advising or
urging without fraud or violencé any of these acts regard-
less of. any promise described in section 3‘as hereinabove
discussed. ew
These are the same dharacter of acts which Congress in
ection 20 of the Clayton Act of Qctober 15, 1914, sought to
strictfrom the operatién of injunetions, but because of
the)interpretations placed by the eourts on this section of
- th¢ Clayton Act, the restrictions as contained therein have.
become more or less valueless to labor, and this-section is
intended by more specific language to-avercome the quali-
fying effects of the decisions of the courts in this respect.
As an, example of the manner in which the courts have in-
terpreted this section of the Clayton Act which is respon-
sible in part for this agitation. for further greet: we
beg leave to cite the following cases.
In the case.of Duplex Printing Press Co. v. Deering (254
U.S. 443), decided January 3, 1921, and being a six to three.
decision, the court held so far as pertinent to this particular
discussion that this section of the Clayten Act provided a
restriction upon the use of the injunctions in favor only of
fhe immediate disputants and that other members’ of the
. Qnion not’ standing in the proximate relation of employee’
and employee could be enjoined. Of course, it is fundamen-
tal that a strike is generally an idle gesture if confined only
to the immediate disputants, This is intended to be reme-.
- died by the later provision in this act defining the meaning
of the term, ‘‘persons participating in a labor dispute,’’ a8
a
13. o
to whom, as in the bilt defined, th®courts are deprived of
jurisdiction to issue injunctions in the specified instances set
forth in this section. sek ae -
In the case of the American-Steel Foundries Co. v. Tri-
City Central Trades Council, supra, there was a strike, and,
ofcourse, a picket line. ‘There was practically no fraud er
violence byt the persistent giving of publicity to the facts in-
>volved in the dispute and the persistent advising of other
persons without fraud or violence not to work for the em-
ployer. It was thoughtby the labor union that section 20
prohibited an injungtfon against such acts, but the Supreme
Court held that such acts eould be enjoined, and, therefore, -
the legislation proposed specifically restricts the*courts in
this respect: unlegg. the acts are accompanied by fraud or
violence. .
« Section 5: This section provides that no United States
court shall have jurisdiction to issue an injunction upon thie
ground that the persons participating in a labor dispute are
engaging in an unlawful’ combination because of the doing
in concert of the acts enumerated in section 4.
This section is included principally because many of the
objectionable injunctions have been issued under the provi-
sions of the ‘anti-trust laws, a necessary prerequisite for.
invoking the jurisdiction of which is a finding of the’ exist-
ence of a conspiracy or combination and without which no
injunction could have been issued. ’?For example, in the
case of Bedford Cut Stone Co. v. Journeymen Stone Cut-
ters’ Associatior (274 U. S. 37) a 7 to 2 decision, where
there Was: simply a rule by the association forbidding the
members from working on the ‘‘unfair’’ stone of the com-
plainant, the Supreme Court held that. while it was lawful
for members independently to refuse to work, when they
refused in concert, it beeame a’combination, and when this
unreasonably interfered with interstatg-eommerce, it could -
‘be'enjoined under the antitrust laws, resulting in the mem-
bers being enjoined from refusing to work.
_ Section 6: Section 6 provides that no employee of any
organization and no organization participating in a labor
dispute shall be held liable for the unlawful acts of indi-
vidual members, except upon clear proof of actual authori-
zation of such acts. This section speaks for itself and is
- & — te a
. desirable because ny individuals and associations have
been held liable for ‘unlawful acts of overzgalous members
which acts were neither authorized nor ratified by the officer
or associatian and were entirely without the scope of any”
authority commitfed* by the officer or association of the
offending member. i ae
This provision does not affect the general law of agency,
_and it if necessary, under the circumstances, that the courts
' should know that Congress‘expects them not to hold officers
or associations liable for the unlawful acts of a member
without clear proof of actual participation in, or authoriza-
tion of, any unlawguFicts by the officer or associatione
Y +
Section 7: This sectionis largely procedural and restric-
_ tive in characteg) The fairness of this section can not rea-
* sonably be disputed. It simply provides that no court shall
have jurisdiction to issue an injunction in.cases’growing out .
of a labor. dispute except dfter hearing the testimony of
witnesses in open court with an opportunity for cross-ex-
* aminati6n and except after findings of fact by the court that\
unlawful acts have been commijtted and will be continued
unless restrained, that irreparabl) ‘ajury to the cémplain-
- ant’s property will follow, that'as to each item of relief
’ granted greater injury will be inflicted upon complainant by
. the denial of relief than will be inflicted upon defendants °
‘by the granting of relief, that complainant has no adequat¢é
' remedy at law, and that the public officers chafged with the _
duty of protecting complainant’ -property gre unable or:
unwilling to furnish adequate pratection.
As will be noted, this is to prevent courjS from issuing’ ,
injunctions without making a finding of Sa¢ts or where the
unlawful acts are only threatened and( where no substan-
tial injury will follow, or where the injdry always dpne by
— the relief is outweighed by the injury which would
‘be inflicted by the denial of the relief, or where the public
officers fail in their duty. The last provision is considered
desirable, because it often happend that complainants rush-
inte a Federal court and obtain an injunction the enforee-
ment of which requires {he court to consider and punish acts.
which are and ought to be, ur s¥stem of government,
cognizable in the local tribuna]s.~ Our Federal courts
~
y) wisi aati mge
15
eady are congested with cases ordinarily cognizable in
the local: police courts, for example, the multitude of cases
growing out of the prohibition act;-and the granting of
injunctions in many cases results in further congestion
beed#use the Federal courts are required to punish as con-
t¢émpts acts which are clearly local police-court matters.
The other provisions of this section hardly require any -
a discussion, because they relate to the giving of
> 2
the length of time that a temporary restraining.
pore shalt be effective, the necessity for ging: an under-
_daking with surety, the recompense for dayhages caused
' expressly complained of and expressly includ
by the erroneous issuance of’ injunctions, ayd the like; all
of which are generally considered niece and reasonable
when -the ‘extraordinary injunctive arm of the court is
brought into play with the serious consequences of injury
whieh the improvident i issuance of an TP frequently
produces.” oe
&
Section 8: This section prohibits any injunctive relief
wher@ the parties have failed. to make every re nable
tion imposed by law, or have failed to invoke the aid
available governmental machinery for mediation. There
can be no reasonable objection to this section because it
is universally believed that disputes should be settled with-
out resort to.courts wherever possible, and. the settlement
of disputes ‘By conciliation and arbitration, insteadgof by
strikes, has become the rule rather than the excep
Section.9: This seetton provides for findings of fact by
the court which must be filed in the record of the vase prior
to the issuange of any injunctive order, and also provides
that every a growing out of a labor dispute
shall includé offy‘a prohibition of such specific acts as are -
in the find-
ings r fact made and filed. by the egurt.. This
ry the acts enjoined and to: prevent‘ the enjoini
which are not complained of—cléarly a deterrent to prevent
the very harsh inclusive injunctive orders which are some-
times encountered and which go, by the embracive charac-
ter of the decree, beyond allegations of the complaint or the
r ets AP ee ae .
fader ss , j
ceeding) | 16
— adduced.’ This is clearly a reasonable restriction and
unobjectionable.
Section 10:.Section 10 provides for a, speedy appeal,
which is highly: desirable in view of- the extremely im-
portant issues which disputes of this kjnd involve. | This
section also gives these cases precedence in the appellate
courts, and contains a provision somewhat similar to -the
provision of the statute in relation to the orders of the
Interstate Commerce Commission, wherein it is provided
that such proceedings shall be given ‘precedence over ail °
~~ cases pending therein and shall be in every way expedited.
(See.. 21, title 15, U.S. oy:
Section 11: Section 11 provides that in cases in Rhieh a
person shall be charged with contempt for violating in-
junctive orders the accused shall enjoy the right to a speedy
and public trial by a jury and also provides that this pght |
~ shall not apply to contempts committed in the presence of ©
the court or so near thereto as to interfere directly with
_the administration of justice, etc.’ That Congress has
authority to provide for such a trial by jury has been upheld
by the Supreme Court of the United States in the case of
Michaelson v. U.S. ex rel. Chicago, SgePaul, Milwaukee &
Omaha Railway Co. (266 U: S. 42), wherein. the Supreme
Court upheld a similar provision coftained in section 21 of
the Clayton. Act. -
Section Kee 12 provides that the défendanti \in any
c
x “=D
_ contempt pMceeding may file with the court a demand for
the retirement of the judge, if the contempt arises from an
attack upon the conduct of said judge, and oceurred other
'. than in the presence of the court or so near thereto as to
interfere directly with the administration of justice, and
- that upon filing of any such demand the judge is compelled
to proceed no further. ‘This is desirable becayse in some
‘instantes the presiding judgés have ‘had ronounced —
views in labor disputes as to —_ ms oases a fair and
impartial hearing. .
Section 13: Section’ 13 contains definitions which speak
-for themselves. It is’ hardly~necessary to discuss them
‘other than to say that these definitions include, as herein |
—
° ‘ —
eles
choi <a f :
_ above stated, a definition of a person: participating in a~
labor dispute which is broad @nough to include others than
the immediate disputants and thereby corrects ¢he law as ~
announced in the: case of Duplex. Printing Press Co.
Deering, supra, wherein*the Supreme Court reversed thi
circuit cdtrt of appeals and held Hat the inhibition of sec-
tion 20 of the Clayton Act only felated to those occupying
the position of employer or employee and no others. The
Supreme Court held to the:Same effect in the case of the
Ameriean Steel. Foundries Co. v. Tri- City Central Trades :
* Council, supra.
~The definitioris also, as above ‘stated, limit the act to
eourts ofthe United States whose jurisdiction has been . ;
conferred or limited by-act,of are: that.is to say, the v
inferior Federal courts. C
Section 14: Section. 141 is the usual D provision to the effect
that if any provision is held to. be unconstitutional the
remaining provisions shall not be affected thereby.
Section 15: Section 15 is the usual provision repealing
acts in conflict with the. provisions of this act. £.
. States ‘Having Enaet¢d Anti- Injunction Legisintion e /
In the following States: legislation has been enacted gov-
erning the so-called “ani-injunction laws’’: Illinois, K@n-
sas, Minnesota, Montana, New Jersey, North Dakota, Ore-
gon, Pennsylvania, Utah, Washington, and Wisconsin.
In four of the States (Kansas, Minnesota, Pennsylvania,
and Wisconsin) the law specifically provides that no injunc-
tion shall be issued without previous notice and an oppor-
* tunity heard in open court. ‘The State of Wisconsin,
by chapter 376 of the acts of 1931, enacted a law defining _
is the public police Ofythie State relative to collective bargain-
ing. This act ¢reates a new section relating: to litig tion
‘growing out of the labor disputes and limiting the jurjsdic-
tion-of courts sitting in equity. Section 268.23 concerts the
conditions of issuance of injunctions and restraining or-
~ ders, : This section provides that fo court shall have juris- -
diction to issue an injunction in any éase ‘invélving a labor
dispute it after ‘the testimony of witnesses in: Pb weak .
ya . . c 18 ,
On October 15, 1914, the C ongress of the United States
_ enacted the Clayton Act. og 3 the enactment of this
Jaw, several States had already eMacted* provisions similar
to those contained in section 20 of the Clayton Act. The
following’ States have similar..provisions: North sama
- Oregon, Utah, Washington, and Wisconsin.
In addition to the above States which have enacted: ea
restricting the use of injunctions three other States (Illi-
_ nois, - Montana}and New Jersey) -have enacted | laws, al- .
though similar in many. respects to the Clayton Act, differ _
in the exact wording of the law. (Credit for. the research
of State statutes on the subject is due the Bureau of Labor
Statistics of the. United States Department of. ‘Labor. pas
; In conclusion, it is repeated that the proposed bill is”
‘designed primarily: as a’practical means of remedying exist-
» ing ev ils, and limitations are imposed upon. the courts in
that class of cases wherein these evils have grown up and -
become intolerable. This is a-reasonable exergise of legis- -
. lative power, and in order that the limitation may not. be
whittled away by refined definitions of what persons are
haere a regarded as legitimately i involved in labor disputes,
pe he bill undertakes specifically:to designate those persotis
who are entitled to invoke the protections of the procedure
; = "required.
é Appendix i
Many Members of the House who are lawyets have given:
-this subject a great. déal of consideration, and have ex-
_ pressed their interest in the question of the power of Con-
. gress over equity. jurisdiction of the Federal courts. A
‘ very interesting and scholarly memorandum was prepared
_ on this subject by Prof. Felix Frankfurter, of the Haryard
Law School, and coauthor of a recognized and authoritative
work The Labor Injunction (Frankfurter. & Greene, 1930), _
in which members \ will find not only the historical back- .
ground but an abundance of judicial Precedents and de-
cisions on the subject. s
4. a
oe F>
i . v
eee
19 °°
_ Power ‘of . Congress Over Equity Jurisdiction of the
. Federal Courts
Congressional pow er over Federal equity jurisdiction is
an aspect of Federal legislative power over the Federal.
judiciary generally. Accordingly .this.memorafidum will
treat the broader question first. But since it may be true in
“the law, if not elsewhere, that the whole does not always
include its parts, consideration will then be given to the
question whether there is anything in the nature of Federal .
equity jurisdiction which clothes it with special immunities. ° .
A. Congressional power over the Federal ¢ourts gener- .
ally.—The provisions of Article III, section 2-of the Consti- ;,
tution, defining the scope of ‘‘the judicial power,’’ are n - @
self-executing. Section 1.of the same article provides:
The judicial power of the United States shall be vested i in |
one Supreme Court, and in such inferior courts as the Con-
gress may from-time to time ordain and establish.
The extent to which the judicial-power shall be vested i in
such inferior courts rests with Congress, which | brought
them into being. There has never been a timeyghen the full |
- limit of Federal judicial power has been give the, lower —
Federal courts. Not until 1875, except for the l-year exist-
ence of the act of 1801, were the courts given. jurisdiction _
over ‘‘eases, in law and equity, arising under this Constitu-
tion, the laws of the United States, and treaties * “* °”?
(18 Stat. 470; U. S. Comp. Stat. (1916) seco 99% et .seq.).
Jurisdiction: based on diversity of citizenship existed from
the beginning, subject, however, to certain limitations, such
- as the nécessary amount in controversy and the prohibition
- against suit by an assignee where the assignor could not
have availed himself of Federal jurisdiction.- The act of,
. 1887-88 limited the privilege of .removal to: nonresident
defendants, regardless of the existence of diversity of 7
zenship in other cases (24 Stat. 552; 25 Stat. 433; U. et
Comp. Stat. (1916) sees. 991 (1), 2954-58). These fox >
_ simply thajor landmarks in the delimitation by @ongress of
the scope of judicial power. A full collection of statutes by —
which Congress exercised authority over the ssl a
Jurisdiction, powers, and procedure of the. Federa¥ courts
‘
¢
20.
is contained in Frankfurter and Landis’ Power of Congress
_ over Procedure in Crimina} Contempts in Inferior Federal :
Coyrts—A Study in Separation of Power (1924), (37 . Har.
vd | w Rev. 1010, 1059, 1100). :
Judicial recognition of this authority has been expressed
from the time.of Chief Justice Ellsworth to our day. The
' following, arranged chronologically, are typical: °
Ellsworth, C. Js-in. Turner v. Bank (4 Dall. 8 (1799)): ‘*A
circuit court, however, is of limited jurisdiction, and has
cognizance, not of cases generally, but only of a few special
circumstances, amgtnting td a small proportion of the. .
cases, which an ‘unlimited. jurisdiction would embrace.’’
Daniel, J., in Cary v. Curtis (3 How. 236, 245 (1845)
(upholding statute forbidding action against collector to \
_ reeaver duties paid undew protest) : ‘*Secondly, in the doc-
trine so’often ruled in this court, that the judicial power
of the United. States, although it has its origin In the
’ Constitution, is (except in enumerated instances, appli-
_cable exclusively to this court) dependent for its distribu-
- tion and organization, and for the modes of its exercise,
entirely upon thé action of Congress,.who posséss the sole.
_power of creating the tribunals (inferior to the Sup
Court) for the exercise of the judicial power, and of inal
ing them with jurisdiction, either limited, concurrent, or
exclusive, and of withholding jurisdiction:trom them in the
exact degress and character ‘which to: Congress may seem
_ proper for the public good * * The existence of
the judicial act itself, with its pati suppl¢ments, fur-
. nishes proof unanswérable. on this point:. The courts of .
the United States are all limited in their nature and consti-
tution, and have not the powers inherent in courts existing.
by mae ae or ‘by the common law.’? : |
Grie _in-Sheldon v. Sill (8 How. -441, 449 (1850))
(uphol ” assignee clause of judiciary act) : ‘The Con- —
stitution has defined the limits of the judicial power of
«the. United States, but has not prescribed how much of it
shall be exercised by the circuit court; conseguently, the
statute which. does prescribe the limits of their ‘jurisdic-
tion, can not be in conflict with the Constitution, unless it
confers powers not enumerated therein.’’ ae aie
re
ee: a
Swayne, J., in Mayor v. Cooper. (6 Wall.. 247, 252 ( 1867))
( upholding statute allowing removal in single class of cases
involving law of Congress) : ‘‘As regards all courts of the
United States inferior to this tribunal, two things are nec-
essary to create jurisdiction, whether original or appellate.
“The Constitution must have given to the court the capac-
‘ity to take it, and an act.af Congress must have given to .
the court the capacity to take it, and an act of Congress
must have supplied it.’” >
Field, J., ingEx parte Robinson (19 Wall. 505, 810.511
(1873)) (upholding statute limiting summary power to
punish for contempt): ‘‘The moment the courts of the
United States were called into existence and invested with
jurisdiction over any subject, they became possessed of |
this power (to Punish for cohtempt). But the power-has
been, limited amd ‘defined by the act of Congress of March
2, 1831. The act, in terms, applies to all courts; whether
it can be held to limit the’ authority of the Supreme Court,
which derives its existence and powers from the Constitu-—
tion, may perhaps be a‘matter of doubt. But that it applies
to the circuit ‘and district courts there can be no question.
These courts were created by act of Congress.. Their
powers and duties depend upon the act calling them into
existence, or ‘subsequent acts extending or limiting their.
jurisdiction.’ *
Miller, J., in United: States v. Valo Pac. R. R. (98 U.S.
069, 603): ‘We say therefore, that, with the exception of
the Supreme Court the authority -of ‘Congress, in creating
courts and conferring on them all of much or little of the °
judicial power ‘of the United States, is unlimited by the
Constitutio
Fuller, C. J., in Ex parte Wisner (203 U. S. 449, 459):
“The Supreme Court alone possesses jurisdiction derived
immediately from the Constitution, and of which the legis-
lative power can not-deprive it * * ; but the juris-
diction of the circuit courts depends upon some act of —:
gress,’’
_ Sutherland, J., in Kline « Sacks. Const. Co. (260 U. S.
226, 233-34 (1922)): ‘The right of a litigant tp maintain
an action in a Federal court on the ground that there is
4 controversy between citizens of different States is not
22
-
one derived from the Constitution, unless in a very indirect
sense. Certainly it is not a right granted by the Constitu-
tion. The applicable ‘provisions, so far as necessary to
be quoted here, are contained in Article III * * * The
effect of these provisions is not to vest jurisdiction in .the
inferior courts over the designated cages and contrversies ©
but to delimit those in respect of which Congress may
confer jurisdiction upon such courts as.it creates * * *
That body may give, withhold, or restrict such jurisdiction.
_ at its diserefion, provided: it be not extended beyond the
boundaries fixed by the, Constitution * * * And the -
_ Jurisdiction having been conferred may, at the will ef Con-
gress; be taken away in whole or in part. oS eee
Taft, C..J., in-Myers v. United States (272 U. S. 52, 129. °
30 ( 1926) } (on a suggested analogy between the power of
Congress over*lower. Federal courts and: over removal of
inferior officers) : ‘*By the: second section .of article 3 the
judicial‘ power is extended to all cases in-law and equity
under this Constitution and to a substantial number of —
other classes of eases. Under the accepted construction
. the cases mentioned in this section are treated as fA deserip-
tion and reservoir of the judicial power of the United States
, and a boundary of that power as between the United States
and the States, andthe field of jurisdiction within the limits —
of which Congress may, vest particular jurisdiction in any
_ one’infe®ior-Federal court which it/may constitute.’}
Against this current of authority can be set only certain
pees ‘statements of Story, J., bred of. ‘his militant federalism.
‘Thus, in Martin v. Hunter’ s- Lessee (1 Wheat. 304, haat
(1816) dy he said:
ss
If, then, it is a duty of Congress to vest the ‘ice
power of the. United States, it is a ome. of Congress to -
vest the. whole Judicial powtr. |
‘But this was simply a staternent of personal views; at.
page 337 of the case he recognizes that the decision need’
not be placed on any such iconoclastic ground. For other
expressions ofeStory’s political: philosophy see 1 Story, _.
Life and Letters of Joseph Story (1851) 293. . Compare.
also me insistence that the power of Congress over inter-
. re
23
‘state commerce was ‘‘exclusive,’’ another facet of his fed-
‘eralist philosophy: Dissenting in Mayor v. Miln (11 Pet. |
102 (1837)). Story ’s opinion is a maverick in the judicial
. fold.
Nowhere has the matter been more succinctly put than
in an address of the late Chief Justice Taft before the
‘American Bar, Association in 1922:
-Butsof course the taking away of fundamental jurisdic- \
tion from the Federal courts is within the power of Con-
gress and it is not for me to disetss such. a legislative
policy (47 Rep. A. B. A. ( 1922) 250, 259).
* B. Power of Congress over Federal equity jurisdiction.
_—Apart from the seventh amendment, probably -no ques-
tion would arise of the power to affect equity jurisdiction
is like that existing in England in 1789. (See e. g., Boyle
‘v. Zacharie, 6 Pet. 648, 658 (1832) ; Payne v. Hook, 7 Wall.
425, 430 (1868); M@Uonihay v. Wright, 121 U. S. 201, 206
(1887).) These statements, howgyer, must, be read in the
- light of the problem to-which they niagara They
express the formula by which’a uniform “eq ity ‘jurisdic- .
tion. was established for the Federal courts despite the
great divergences in the practice. of the States at the time.
of the Constitution. Of the 13 States, 5 had separate:
courts of chancery, 3 had no chanceryfcourts, but certain a
equity powers were given, to the common-law courts, 2
had common-law courts with a very, few limited equity
powers, 1-had only common-law courts, and in 2 the legis-
lature exercised some chancery powers. (See The Feder-
alist, No. 83; Warren, New Light on the History: of the °
Judiciary Act (1923), 37 Harvard Law Rev. 49, 96-101.)
It is to-express fhe independénce of Federal equity from
that of the States, not from congressional control, that the
formula has been used. The cases. in which it has been
employed all involved the effect of State relaxation of the
~ dichotomy of. law and equity. It is f@quently said that
the States can peither enlarge nor diminish the equity
Jurisdiction of the Federal courts, e. g., Cates v. Allen
(149 U, S. 451); Mississippi Mills v. Cohen (150 U.'S..
202). Yet even here grgwth and'change have been possible,
- for it is held that a new ‘‘right’’ created in equity by a
J
ve
- 24
State, as distinguished from a new equitable remedy, will
be enforced in the Federal courts. (See a recent discussion
of this question in Henrietta Mills ». Rutherford County,
281 U. S. 121 (1930).) | “
ven i in these cases dealing with State practice, the Sv-
- . preme Court has often been careful to advert to the part
@ which Congress plays in shaping Federal equity juris-
- diction. See, for example, the following:
Marshall, C. Ja i in United States v. Howland (4 Wheat.
106 (1819) at p. 115): ‘** * * and as ‘the courts of the
union have a chancery jurisdiction in every State, and -
the judiciary act confers the same chaggery powers oral,
and gives the same rule of decision, its jurisdiction iy
Massachusetts must be the sarfie as in other States.”’ |
Curtis, J., in Néves v. Scott (13 How. 268, 272 (1851)):
‘*But in all the States the equity law, recognized ‘by the
Constitution and by acts of Congress, and modified by the
latter, is administered by the courts of the United States, -
and upon on by this’ court.’”
Perhaps the most suggestive characterization. of the re-
lation o¥ the practice of the high court of chancery to Fed-
eral equity practice is contained in a statement of McLean,”
J., in Pennsylvania v. Wheeling Bridge Co. (13 How. 518,
563 (1851)): oe
This may be said to be the common law of chancery, and
since the organization of the Government it has been ob-
served.
Indeed, on'at least one occasion the court felt gonstraimed
to point out that there was a body of. principles of equity
apart from laws of Congress:
It is a mistake to suppose that. for the ‘ditecabaaitde: of
equities and equitable rights we must look only to the stat--
utes of Congress. Thé principles of equity exist independ-
ently of and anterior to all Congressional legislation, and
the statutes are either annunciations of those principles
or limitations upon their application in particular cases.
(Brewer, J .. in United States v. Detroit Lumber Co., 200
} U. S. 321, 339 (1906).
25
But reliance need not be had on general statements.
Congress has actually affected the scope of equity juris-
diction. In 1911 an important step was taken in the direc-
tion of a union of law and equity, by virtue of the statute
allowing equitable defenses to be pleaded. in an action at
law, and equitable relief to be sought by way of answer to
“an action at law. (Judicial Code, sec. 274b, 38 Stat. 956;
2% U. S. C., sec. 398). Discussing this. provision in an
address referred to above, Chief Justice Taft said:
Already under the Federal codé, there is "a statutory
provision which has not yet been much considered by the
courts, by which an equitable defense may be pleaded to
asuit atlaw. If wé may go so far, nde a a little difficult to
see why the distinction betwee the two courts may not
' be wholly abolished, and the constitutional right of trial
by jury retained unaffected (47 Rep. A. B. A. (1922) 250, ~
260).
Three months later the Chief Justice had occasion to echo
these remarks in the course of an opinion:
Section 274b is an important. step toward a consolidation .
of the Federal courts of law and equity, and the questions ©
presented in this union are-to be solved muclras they have
been under the State codes. (Liberty Oil Co. v. Condon
Bank, 260 U. S. 235 (1922).)
More partiedlar instances are at hand. Since 1793 Con-
gress has prohibited: the granting of an injunction to stay
proceedings in any court of-a State, except in bankruptey.
(1 Stat. 334 (1793) ; 36 Stat. 1162 (1911); 28 U.S. C., see.
379; Judicial Céde, sec. 265.) Since 1867 Congress has for-
bidden suits to restrain the assessinent or collection of any
tax. (14 Stat. 475; 26 U.S. C., see. 154.) This provision
was recently extended to: include transferees of a taxpayer.
(45 Stat. 873 (1928), 26 U.S. C., sec. 2604, upheld in Phil-
lips r. Commissioner, 283 U. 8. 589 9 (1931).)
A related question was presented by sections 21. and 22
of the Clayton Act, requiring a jury trial in certain classes
of contempts. During the course of the debates in the
House, Joht W. Davis, then'a Member from West Virginia,
summarily dealt with the question :
&
‘courts
26
sree
It’ has been hinted, not argued, that this measure goes
beyond the constitutional power of Congress as to the
* ***, I must content myself with a mere. quo-
tation again from the Supreme Court of the United States
in’the case of In fe Robinson “(19 Wall. 505), having refer-.
ence to the power to punish for contempt. * * * (See
quotation on Pp. 3, — 48 Cong. Rec., pt. 7, p. 6441
(1912).) , | '
ie
The prdvision was upheld in Michaelson v. United States -
(266 U. S. 42 (1924)). Certain statements of Mr. Justice
Sutherland. in that case call for a word of comment. §u-
perficially they seem to run counter, to the current of au: |
thority already cited, e. g., the dictum that ‘‘If the statute .
now under review encroaches upon the equity jurisdiction
‘. intended by the Constitution, a grave constitutional ques-..
tion in respect of its validity would be resorted;
_* * *. How. the intent of the Constitution is to be
determined i is not stated. But the whole context indicates
that the difficulty present to the mind of Mr. Justice
Sutherland was that Congress might deprive the court of >
powers necessary to its proper functioning. . This is the
statement of-the result of the case by the late: J udge Rose
of the fourth circuit: |
co
As all the inferior Federal courts are the creatures of
Congress, the latter has the right: ern their jurisdic
tion over contempts as well as over other nitters, provided
- it leaves them still able to function as courts.
If the dictuln, of Mr. Justice Sutherland means imore
than this, it can bardly be reconciled’ with the views ex-
pressed by Chief Justice Taft. Judge Rose’s view isfound
in his Federal Jurisdiction and Procedure (1926 ed., p. 35.)
Indeed, real limits on congressional power do derive
from the traditional ideas of the proper functions of 4
court. Independence of judgment must not be interfered
with; thus Congress may not, under the guise of &,juris-
dictional.- rule, prescribe ami arbitrary rule of degifion on
‘the merits. (United States v. Klein, 13 Wall. 128 (1871).)
Nor may Congress place finality of judgment in the execu-.
_ tive department after a decision by the courts. (Gordon tv.
8 ty
f
.
a7 i :
United States, 117 U. S. 697 (1864).) Nor may courts be
given the duty of passing upon matjets which other
branches of the Government are peculiarly adapted to de-
cide. (Oetjen v. Central Leather Co., 246,U. S. 297 (1918)
' (recognition of foreign government), Keller v. Potomac \
Electric Power Co., 261,U. S. 428 (1923) (rate fixing).) . -s
These are the types of cases in which the power, of,Con-
gress over the judiciary hasbeen successfully controverted. :
"C. Conclusion. —The power of. Congress over the equity
powers of the lower Federal courts is implied i in congres- .
sional power over. these| courts generally, as exercised in’
the whole series of judiciary acts, and as recognized. by a ys ae
continuous current of judicial authority. The immunit PY
»» of Federal equity powers to change i is.a doctrine for the
preservation of uniformity and is directed at the effects o
varying State practice; even here, iowever, some inroads
_ have been made where the State law creates a new ‘‘right.’’
' The authority of Congress, 'to establish a union of law and
equity, preversing the. right to jury trial where proper, ~
has been recognized by high authority. Congress has pro-
hibited injunctive relief in certain classes of cases. The
acts of Congress which have been held unconstitutional,
dealing with judicial powers, have violated the traditional -
‘canons. of judicial functions. No act of Congress has beer
held unconstitutional on the ground that it interfered with
Federal equity powers. For Congress itself te hesitate on
this groviyd ‘would seem to be'a paradoxical bit of #if- .
abnegation, eh 1
“S
Woke Ga te |
28 YX
es Je
CALENDAR No. 176
72d Congress : a " Report
1st Session SENATE ca No. 183
TO DEFINE ANDMniggT THE JURISDICTION OF |
3 COURTS SITTING IN EQUITY
” = ° | mene
‘ ee
, February 4, 1932.—Ordered to’ be printed
a rei
Mr. Norris, from the Committee on the. Judiciary, sub-
mitted the fajowing
REPORT
[To accompany 8. 935)
ie Committee on the Judiciary, to which, was , referred ’
- the bill (S. 935) to amend the Judicial Code and to define
and limit the jurisdiction of courts sitting in equity, and
for other purposes, having had the same’ under considera-
tion, beg leave to report as follows:
We recommend that the bill be cenenitelk as 5 hevelnatier .
set forth, and, as so amended, that the bill be passed)
gihe following amendments are recommended :
z On, page 2, line 10, aftervthe word ‘‘wherefore”’, in-
sert the following: “though he should be free to decline
to assdciate with his fellows’’.
“On page 3, line.1, after the word ‘‘enforceable”’,
Aert the words *‘in any court.6£ the United States”’.
7 On page 3, line 3, after~the word “any”, insert ”
word “such’’.
4: On page 3, line 3, alte the word ‘‘court’’, strike out
the words ‘‘of the United States’’: :
5. Om page 3, line 2, strike out the word ‘‘cases’’ and
insert, in lieu thereof, the words ‘‘any case’’. a
re.
6. On page 8, line 25, ‘after. the word Bae Nee So
insert the words ‘‘and on his filing the usual bond for
costs’’.
7. On page 9, line 1, after the word “certify”, insert the
words ‘‘as in ordinary cases’?
aah
8. On page 9, line 1, strike out the word ‘‘entire’’:
9. 1 n page 9, line 1, after the word ‘‘case”’, strike out
the wo ‘“inelading a transeript of the evidence taken’’
10. On page 9, line 9, strike out the word ‘‘where’’ and
insert, in lieu ‘thereof, the words ‘in which”’.
" 11. On -page 9, line 10, strike out ‘the words “*‘indirect ¢
criminal?’ Aa
‘12. Om paged9, line 15, strike ‘out the y **require- *
ment’? and insert, in lieu thereof, the word ‘‘ right’.
13. On page 9, line 15, after the world ‘*not’*, strike out
. the words ‘‘be construed to’’.
14. On page 9, line 22, after the word ‘‘court’’, where
it first appears in said’ line, strike out the words ‘‘is au- *
thorized to’’ and insert, in lieu thereof, ‘the word ‘‘may’’.
15. On page 10, line 1, after the word ‘‘the’’, strike out
the word “attack”? and insert, in lieu thereof, the word 4
‘“contempt’’.
.
.
‘16. On page 10, line 1, after the word ‘‘oecurred”’, strike
out the word ‘‘otherwise”’ and insert, in ihe thereof, the
word ‘‘elsewhere’’, ic
JAZ. On page 10, line 2, strike but the words ‘‘op@: court"
and insert in lieu thereof the words ‘‘the presence of the
court or so near thereto as to interfere directly with the
administration of justice’’.
ne es On ‘Pese 10, line 4, after the word ‘‘as*’, insert the
wore ne |
19. On page 10, dine 4, after the word «provided ‘strike
out down to and ineluding the word ‘*Code”’ in line 6, and
inse ai in lieu thereof the words ““by law’’. : ..
waa) AS ‘i a
. a,
20. On | page Mn, line 15, strike out the word “and” and
insert i te thereof the word ‘‘or’’.
n page 11, line 24, after the word ‘“‘any’’, strike out
the werd geac, al and insert i in lieu thereof the word
‘provision’. © i eee
¢
* 22. On page 11, line 24, after ‘the word ‘‘act’’, strike out
down to and including the word “circumstance” in line %.
23. On page 11,. line 29, after. the word ‘‘held’’, insert
theawords ‘‘unconstitutional or herwise’’. apace
2A. e 12,.line’1, aftér the word ‘*thie’? where it
‘first appears 1 in said line, ‘strike out the word ‘‘ remainder”
and in liew thereof insert the words ‘remaining aad
sions’’.. .
_ _26.-Ou page 12; line 1, after the word tact”, strike out
down to and including the word ‘‘cireumstances’? in line .
2, page 12.
pe
The’ Committee’ on the. Judiciary has been considtfing
%, + the subject\of injunctions in labor disputes for several
years, and ill is a result of such study ang consid-
eration, ._
In the Seventieth Comtieis on December 12, 1927, the
he Senator from Minnesota, Mr. Shipstead, introduced a
¢ . on the subject (S. 1482)... From that time to the p
_ the Judiciary Committee; in one form or another, has had
under consideration the question of limiting the jurisdic.
tion of Federal courts in stanting injunotions in labor dis-
putes. °
er the Seréntieth Cinavese the bill referred to (S. 1482)
‘was referred to a subcommittee consisting of the Senator
_ from Wisconsin, Mr. Blaine; the Senator*from Mo nog
| ’ Mr. Walsh; and the writer. This subcommittee’ he
tensive and unlimited public hearings upon the Bill. No
limit was placed upon the-hearings, and those who favored
the legislation and thtse who were opposed to the legis-
| iniiee. were heard without limitation.
. At the close of the hearings .this bubcommittes; in et
e’ ecutive session, went over the hearings and discussed all
phases of the proposed legislation. The subcommittee was
ce)
~
31
-
a Ss ae
‘wianimous in ‘reaching’ the conclusion that some legisla: |
tion on this subject was absolutely. necessary in ,the public
interest; but it likewise reachedsthe conclusion that the —
~ bill under consideration did not. futy meet the require,
ments. | oe ES OPR LG Serre : :
After further consideration this subcommittée ‘called into
consultation economists and attorneys who had made a .
special study of this particular subject. They invited Prof.
Felix Frankfurter, of the law ‘school of ‘Harvard Univer-
sity, Cambridge, Mass.; Herman Oliphant, former professor” -
of law at Columbia University,-now a member of the -
faculty’ of the institute of law, the Johns Hopkins Univer- -
- sity, Baltimore, Md.: Prof. Francis B. Sayre, law school of v
Harvard University, Cambridge, Mass.; Mr. Edwih EK.“
Witte, chief of the legislative ‘reference library, Madison,’
Wis.; and Hon. Donald R. Richberg, attorney, of Chicago,
Ill, to meet with the subeommitte¢ for the purpose of giv-
ing further consideration to the subject and drafting
proper legislation. As a result of such consultation and
. deliberation, the suhecommittee prepared a substitute bill
which, in its es$ential ‘and mié#terial particulars, is prac-
tically the same as'the bill now reported to the Senate .
(S. 935). | Fa anes a
The subcommittee reported this substitute to the full
Committee on the Judiciary. After this report was made
and after considerabte consideration by. the full Commit-
/aee, various attorneys representing intetests opposed to the
‘enactment of the proposed bill Faaiaied.fovber Deavings
upon the substitute bill recommended by the subcommittee.
The Committee on the Judieiary, after considerable dis-
- cussion, thereupon referred the entire matter back to the
subcommittee, with instructioysx to. hold further hearings
upon the proposed substitute. In aceordance with these
difectiéns, the subcommittee again held public hearings
and gave to‘all persons who so desired an opportunity to
be heard. At the close of the hearings, the subcommittee
again reported the bill to the full committee, with the -
_ Tecommendation that the substifute be agreed to and that ~
the bill, as thus amended, be favorably reported to the
Senate. ; :
.
v
\"
The proposed bill was the subject of. consideration and
discussion in the full committee for several weeks, but no
final dction.was taken by full committee during that -
session of the Seventieth Congress. At the second or short
mary of the Seventigth Congress, the bill was again taken
ag
vue ; \
) ya eo full committee, but no.cenclusion was .reached
ne
the final adjournment of the Congress the -bill died
upon the calendar of the committee without any —
thereon.
At the beginning of. the regular ‘session of the Beven .
first Congress, on the 9th day of December, 1929;
ator from Minnesota, Mr. Shipstead, again inteddineed '
bill, this time known as S. 2497, which bill was in prac
tically the same form:as the bill, 8: 1482, of. the Seventieth
Congress.
The Judiciary Committee referred the bill to the same
subcommittee which had handled the matter in the-
Seventieth Congress. This subcommittee, having given
such extensive hearings and consideration to the bill ir
‘the Seventieth Congress, did not feel that additional hear. -
- ings were necessary. Nevertheless, upon appli ation of
‘attorneys representing corporations ‘and organiza! i
. posed to the enactment of this kind of legi lation, limited
ions Op-
hearings wére again held and all intereste parties were
permitted | to file written briefs. ;
The tin after giving further consideration to
- the subject, and after niakirig several amendments to the.
substitute bill previously prepared by the subcommittee,
again reported the bill to the full committee with the ree
omgnendation that the amended substitute be agreed to and
that the bill, as thus. amerided, be tavoraity reported to
the Senate.
After further consideration. by: the full committee. upon
the report of the subcommittee, the substitute proposed by
the subcommittee was amended dy the full committee in
several respects, but, upon motion to report the bill to the
Senate as amended by the proposed subcommittee substi-
tue, with a tecommendation. that as thus amended theibill
be passed, 7 members of. thé committee voted, in favor of
such report and q members voted against making the re
’
33
port (3 members not voting). Thus the — to ‘make a
favorable report was defeated.
The proposed substitute bill, however, was ‘again further
considered. by the full committee and, as a result thereof, :
by a majority vote of the cammittee, the proposed bill was
so A to the Attorney General with the request that
he
ndicate to the committee his views concerning the con-
stitutionality of the proposed legislation and also i as to the
effect the enactment of such legislation would’ have upon
the United States in cases in which the Government may
desire, to apply to Federal courts for equitable relief: by
-injunction, After giving the matter consideration, the
Attorney General declined to comply with thé eommittee’s
request and ‘in an official communication so informed the
committee.
At the next meeting of the committee the substitute: bill
was again taken up and, after further discussion, the com- -
. ihittee, by a majority vote, decided to make an adverse re-
* port upon the bill. The majorjty report was made by Sen- .
afor Steiwer on June 18 (calendar day, June 20), 1930
(71st Cong., 2d sess., Rept. No. 1060). The minority re- |
port was filed on the same day and is known as Report No. ae
1060, part 2.
No action, however,-was take: by’ ‘the Senate upon the
bill thus adversely. reported and the same died upon the
calendar of the’ Senate upon ‘the adjourhment of the
_. Seventy-first Congress.
Soon after the convening of the Seventy-second Congress,
on December 9, 1931, the present bill, S. 935, was intro-
duced in the Senate. This bill, for all practical purposes,.
is thegame as the substitute. bill reported by the subeom-
inittee in both the Seventieth and the Seventy- first Con-
- Lresses,-
‘Immediately upon the bestvedinatton of the bill various in-
terests opposed to the bill again applied to the committee
_obor further hearings. The committee, however, after con-
idering such applications, reached the conclusion that suf-
‘ficient hearings had been kad, but they did allow all per-
sons interested who desiréd to do so, to file written briefs
upon the subject, limiting the time for the filing of stich.
.. briefs te the 2 25th day of January, 1932.
ie ;
—
34
= Thereupon the full committee again took up thie consid-
eration. of the bill and, after many days of consideration
in éxecutive, session, the amendments heretofore suggested
_ were agreed upon by the committee and, as. thus amended,
the commiftee, by a vote of 11 to 4 ordered a-favorable re-
port made to the Senate.
“The bill, as thus reported, if oe amendments suggested
by. the committee are agreed to, will read as follows ; ee
Be it enacted by the Senate and. House of Repre-:
sentatives of the United States of America in Com
gress assembled, That no court of the United States,
as herein‘defined, shall have jurisdiction to issue any ©
restraining order’ or. temporary or permanent -injune-
_ tion in a case involving or growing out of a labor dis-
* pute, except in strict conformity with the provisions
of this act; nor shall:any such restraining order or
“temporary. or permanent injunetion be .issued con-
trary to the public policy declared in a act.
Srv: 2. In the interpretation of this act ‘nd in de-
termining the jurisdiction and‘ authority ‘of the courts:
of tle United States, as such jurisdiction: and au-
thority are herein defined and limited, the public pol-
icy of the United States is hereby declared ‘as follows: .
Whereas ‘under prevailing economic conditions, de-
veloped with the aid of governmental authority for-
- owners of property to organize in the corporate and
other forms, of ownership association, the individual -
_ unorganized worker is commonly helpless to exercise
‘actual liberty of contract and to protect his’ freedom
.of labor, and thereby to ‘obtain acceptable terms and
conditions of employment ywherefore, though he should
be free to decline to assodate with his fellows, it
‘is necesstry that he have full freedom of associa-
tion, self- -organization, and designation of represen
tatives of his own choosing, to. negotiate the terms
and conditigns of his employment, and fhat he shall
‘be free from the- interference, restraint, or coercion
of employers-of labor, or their agents, in the designa-.
s tion of such representatives or in self-organization or
in other cancerted activities for the purpose of ¢ol-
~
35
lective bargaining or other mutuah aid or protection ;
therefore, the: following definitions of, and limitations
upon, the jurisdiction and authority of the courts af
the United States are hereby enacted..
scribed in this section, or any -other undertaking’ or
section 2 of this Act, is hereby declared to be con-
trary to the public policy , of the United States, shall
tiot be’ enforceable in any-court of the"United States
legal or equitable relief by any suchecourt, including
specifically the following:
whether written or oral, express Or implied, consti-
_- tuting. or contained in any contract or agreement of
hiring or employment between any individual, firm,
éompahy, association, or corporation, and any em-
“ployee or prospective . émployee /of the sera
whereby— _ - ; i
(a).Kither party to such contract or agreement
undertakes or promises not to join, become, or re-
Main a member of any. labor organization or of any
employer organization; or.
. (b) Either party to such contract or agreement un-
dertakes or promises that he will withdraw from an
eemployment relation in the event that he joins, be-.
. comes, or remains a member of any’ labor organiza-
_tion or of any employer organizatign.
‘Sec. 4. No court of the. United States shall have
jurisdiction to issue any. restraining’ order or .tempo- -
rary Or permanent injunction in any case inv@jving or
growing out of any labor dispute to prohibit any per-
son or persons participating or interested in such:
dispute (as these terms are ‘herein defined) from do--
ing, whether singly or in edneert, any. of the following
acts:
(a) Ceasing or ‘ine to perform any work or to
remain in any relation of employment;
Sec. 3. Any undertaking or promise, ‘such as is de- -
‘promide jn conflict with the public poKey declared ‘in .
and shall not afford any basis for the granting of.
Every undertaking or promise hereafter. ade.
>
$y
.
’
ae et
(-b) Becoming or G@emaining a member of. any labor
“organization or of any employer parson pa regard.
less of any such wudertakitig’.o * promise as is de-
scribed in section 3 of this act °
‘(e) Paying or giving to, or witgholding from, any
-person participating or interested in such labor dis-
pute, any strike or unemployment benefits or insur
ance, or other moneys or things of value;
(d) By all lawful means ‘aiding any person par-
ticipating or interested-in any labor dispute who is
being proceeded against in, or is prosecuting, any ac-
tioy, or suit in any court: of the United States or of ©
any State;
(e) Giving pulfizity to the existence of, 6r the facts
involved in, any labor dispute, whether by advertis-
ing, speaking, “patrolling, or by any other. method not
‘involving f raud or violence; —
(f) Assembling peaceably to act or to organize to
act in promotion of their interests in a labor dispute;
(g) Advising ‘or not-fying any person of, an inten-
tion to do any of the acts lreretofore specified;
(h) Agreeing with other persons to do or not to do
any of the acts heretofore specified; and
(i} Advising, urging, or otherwise causing or it-
ducing without fraud or violence the acts heretofore
specified regardless of any such undertaking or
promise as is desdribed in section 3 of this act.
Sec No cout of the United StateQ shall have
jurisMction to issuc\a restraining order or temporary
or Permanent injuncti
the persons participat
ion upon the ground that any of
iw or interested in a labor dis-
-pute constitute or are engaged in an unlawful com-
hinatida of censpiracy because of the doing in concert
‘of the acts enumerated in section 4 of this act.
. ;
Sec. 6. No officerror member of any. association or
organization, and no association or organization par-
ticipating or, interested in a labor dispute, shall be
oF
es GaN Se
held responsible or liable in %my court of the United
States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual
participation in; or actual authorization, of such acts,
or of ratification of such Acts after actual knowledge
thereof.
Sec. 7. No court of the United States shall have
jurisdiction to issue a _teniporary or permanent -in-
junction in any case involving or. growing out of a
labor dispute, as herein defined, except after hearing
the testimony of witnesses in open court (with op:
portunity, for Gross- examination ) in support of the’
allegations of a complaint made under oath, and tes-
timony in opposition thereto, if offered, and except
after findings of fact by *the court; to tlie effect—
: rr} e . Z —— $
(a) That unlawful acts have been committed and
will be continued unless restrained ;
(b) That substantial‘ and irreparable injury to com-
plainant’s property will follow:
iter
nial
(c) That as‘to-each item, of relief ghanted ere
injury will be inflicted ‘upon ‘complainant by the de
-
of relief than will be inflicted: upon defendants by the -
granting of relief;
(d) That complainant has no. adequate remedy at
law;and — ' wird
(ec) That the public officers charged with the duty
lo protect complainant's property are unable or un-
willing to furnish adequate protection. +
Such hearing: shall be held after due and personal
notice thereof has been given, in such manner as the
court shall direct, to all known persons against. whom
relief is sought, and also to those public officers
charged with the duty. to protect complainant's prop-
erty: Providet, however, That if a complainant shal!
also allege that, unless a temporary restraining order
shalt be issued without notice, a sujgptantial and, ir
reparable injury to complainant’ ~ pwns will be u
avoidable, such a temporary restraining.order may be
*.
S
= 38
_?
issued upon testimony under oath, sufficient, if sus- -
tained, to justify the court in issuing a temporary in-
junction upon a hearing after notice. Such a tempo-
rary restraining order shall be effective for no longer
than five days, and shall become. void at the expira-
tion of said. five days. No temporary restraining
order or temporary injunction shall be issued except
on condition that complainant shall first file an un-
dertaking with adequate security sufficient to recom-
pense those enjoined for any loss, expense, or damage
caused by the improvident or erroneous issuance of
such order or injunction, including ‘all reasonable
costs (together with a reasonable attorney’s fee) and
expense of defense against the order or against the
‘granting of attinjunctive relief sought in the same.
proceeding and subsequently denied by the court.
- ‘The undertaking.herein mentioned shall be under-
sfood to signify an agreement entered into by the
; complainant and the surety upon which a decree may
be rendered in the same suit or proceeding against
said complainant and surety, the said - complainant
and surety submitting themselves to the jurisdiction:
af the court for that purpose. But nothing herein
-contained shall deprive any party having.a claim or.
cause of action under or upon such undertaking from
electing to pursue his ordinary remedy by suit at lav
or in equity. :
Sec. 8 No restraining order or injunctive relief
Shall be granted to any complainant who has failed to
comply with any obligation imposed by law which is ©
involved in the labor dispute in question, or who has
failed to make every reasorpble effort to settle such
dispute, either by negotiatign er with the aid of any
available governmental machinery of mediagion or
v oluntary arbitration.
Sec. 9. No restraining oral or temporary Or. per
manent injunction shall be granted in a case involving
or growing out of a labor dispute, except on tite basis
of findings of fact made and filed by the court in the
record of the case. prior to the isgnance of such re
s .
*
—_ . .39 7
straining. order or injunction; and every ‘restraining
order or injunction granted in a case involving or
* grewing out of a la dispute shall include only &
prohibition of such specific act or acts as may be ex-
pressly complained of in the bill of complaint or peti-
tion filed in such,’case and as shall be expressly in-
cluded in said findings of fact made and filed by the
court as provided herein.
. «
Src, 10. Wherever any court of the United States
shall issue or deny any temporary injunction in a_
. ease involving or, growing out of a labor dispute, the
_ court-shall, upon the request of any party to the pro-
. ceedings, and on his-filing of ‘the usual bond for costs,
forthwith certify as in ordinary cases the record of
. the case, to the circuit court of appeals for its re-
view. Upon the filing, of such rd in. the circuit
court of appeals, the appeal’shaR be heard and_the
temporary injunctive order affirmed; modified, or set
aside with the greatest possible expedition, giving the
proceeding precedenee over all other matters except
older matters of the same character.
Sec. 11. ™ alll cases in which a person shall be
deine with contempt for violation of a restraining
order or injunction issued by a court of the United
‘ States (as herein defined), the accused shall enjoy
the right of a speedy and public trial by an impartial
jury ‘of the State and district wherein the contempt
shall have been committed: Provided, That this right
shall not apply to contempts committed in the presence
of the court or so near thereto as to interfere directly
with the administrationsof justice or to apply to the
misbehavior, misconduct, or disobedience of any offi-
_ cer of the court in ‘respect to the writs, orders, or
process of the court. .
Sec. 12. The defendant in any proceeding for con-
tempt of court’ may file with the court a demand for
. the retirement of the judge sitting in the proceeding,
if the contempt arises from an attack upon the char-
actef or conduct of such judge rand. if the contempt.
.*
40)
.
Qccurred elsewhere than in the” presence « che court
or so near thereto as to interfere directly with the
administration of justice.. ,Upon the filing of any such
demand the judge shall thereupon proceed no further,
ni another judge shall be designated in’ the same
anner as is provided by law. The demand shall be
filed prior to the hearing i in the contempt proceeding.
‘Sec. 13. When: used i in this act, and for the purposes
of, this act— 3 , & G
(a) A case shall be held to involve or to grow ot
of a labor dispute when the case involves persons who
- are engaged in the.same industry, trade, craft, or oe-
cupation; or have direct or indireet interests thereitt
or who are employees of the same employer; or who .
‘are members of the same or an affiliated orgapiza jon
of employers or employees ; whether ‘such’ dispute is
(1) betweeti one or more employers or associations of
employers and one or more employees or associations
‘of employees ;*(2) between one or ‘more employers or
associations of employers and one or more employers
or associations of employers; or (3) between one or.
more employees or associations of employees and one
or more employeés or associations of employees; or
when the case involves any conflicting or competing
interests inva ‘‘labor dispute’? (»s hereinafter de-
‘ fined) of ‘‘persons participating ‘or interested.’
therein (as hereinafter defined).
(b) A person or association shall: be held to be a
person participating or interested in a labor dispute
if relief is sought against him or it and if he br it is ©
-engaged in the same industry,Trade, craft, or oceupa-
tion in which such dispute occurs, or has a direct or
indirect interest therein, or is'a member, officer, or
agent of any @see+tion composed in whole or in part
of émployers or empldyees engaged in such industry,
trade, craft, or occupatie
(c) The term ‘
troversy concernin
ment, or concerning the
sae
oe
ispute’’ includes any con-
or, conditions of employ:
Sssociation or representation
s
ar
-
1
Mele a
41 » | ‘
. .
of persons in negoti ine, fixing, magiftaining, chang-
ing, or seeking to % rrange terms or conditions of-em-.
ployment, or concerning employment -yelations, or any
other controversy arising out of the— respective in-.
terests of employer and employee, regardless “of
whether or not the dispuatants stand in the proximate
relation-of employer and employee.
“s (d) The term ‘‘court' of the United States”’ iheans
_any court of the United States whose jurisdiction has
heen gr may he conferred ‘or defined or li:nited by act
of Congress, including the courts of the District pf
( ——e gx .
© Sec. 14. If any provision of this act is held uncon-
stitutional or otherwise invalid; the remaining provi:
sions of the, Act shall not be affected thereby.
\
Sec. 15-“All acts and parts of acts m conflict with
the provisions of this act are hereby repealed.
Thus, after a little more. than three vears ‘of -com
sideration by the Judiciary Committee, with the as-
sistance of the experts heretofore named,
reached.a point. where the committee, by a sullgtan ial
majority, has made a definite recommendation to, the
Senate for remedial legislation upon this very much
controverted subject.
The limitation of the jurisdiction of Federal courts to
issue injunctions in labor disputes has been a subject of
_ public discussion for many years. It is fair to say that
public sentiment on™he subject has reached the conclusion
that Some such limitation is absolutely necessary. Both of
the great political parties in their last national, platforms
have promised remedi@f legislatio n the subject. The
last Republican National Convention at’ Kansas City
adopfed a plank on-the subject as follows:
The party favors freedom in wage con racts, the
right of collective bargaining by free and responsible
agents of their own choosing, which dev lops and
naintains that“purposeful cooperation which Xai
_chief incentive through voluntt- ry, agreement,
ar
have .
42
We bélieve that injunctions in labor disputes have
in some instances been dbhused and have given rise ‘to
a serious question for legislation. |
- »
Following this, the last ghee National Convention
at Houston, Tex,, in its platforfs, made the following
provises. » Pd — .
(a) We favor the principle of collective bargaining
and the Democratic principle that organized. labor
should ehoose its vwn representatives without coer-
cion or interference. =
hope (b) Labor is not a commodity. Human Fights must
; be safeguarded. bor should be exempt "from ‘the
operation of antitrus laws.
(c) We recognize that levislative and other investi-
gations have shown the existence of: grave abuse i in
~the issuance, of injunctions in labor disputes. No in--
junctions should be granted in labor disputes except
upon proof of threatened irreparable i injury and after -
notice And hearing, and the injunction should be con-
fined to those acts: which do directly threaten irrep-
arable injury. The d@xpressed purpose of representa-
tives of capital, labor, and the bar to devise a planyor
the elimination of the present evils with resPect to
+ injunctions must be supported and legislation designe!
~ to accomplish these ends formulated and passed.
It is, efore, a nonpartisan question, and, assuming
that both of these great political parties in their national
; conventions were acting in good faith, it follows that either
this bill or some other legislation of similar import, earry-
_ ing out the pledges made to the people of the United
‘ States, should be promptly enacted.
‘The injunction process is an extremely harsh remedy.
Particulaply i is this true when a ‘restraining order is issued ,
without any: riotice to any ‘of ghe defendants; and in nearly |
every case ina labor dispute where an injunction is issued,
+ the restraining order is the first step. The fi wledge
which the defendant has is service of notice upon hinh thet
the pestrolanng, order has* already been insued. Before he
i 5 BY
: —
is given an ‘opportunity to be heard, he i is snjeinéd, oy in
most cases he is restrained from doing: acts and things
which ‘seriously interfere w igh, and sometimes completely
deny, his fundamental right of liberty of ontion, which be-
longs to eve ery free citizen. :
That there have been abuses of jndicial power in grant-
ing injunctions in fabor disputes i is hardly open to diseus-
sion. The use of the injunction in such disputes has" beet
growing by leaps gud bounds.
olt is impossible fo. report.with accura®y the Rear of
injanctions. issued in either the State or Federal courts in: -
connection with labor disputes in revent years. Only a
small percentage of these injunction cases are reported
officially. For example, approximately 300 were issued in
connection with the railway shopmen’s strike of 1922, but
only 12 were officially reported (Frankfarter on “The
- Labor Injunction,’’ p. 52).
In testimony before the committee the president of the
American Federation of Labor submitted a partial lisf of
389 labor injunctions in State and Federal courts during.
the last decade, most of which are unreported. (Hearings,
February, 1928, pp. 77-86.) Out 6f over 260 cases .listed
hy the Massachusetts Bureau of Statistics in the -period
of 1898-1916, only 18 were officially reported (p. 51). A
large-majority. of injunction procecdings are never carried ~~
beyond a.rest raining order ow tem}
therefore, are unlikely ever to rea
reporting, which is coveerned la
and with decisions of appellate
statistics ‘can not be presented/but the statement can be
safely made tha ice 1890, Avhen Jobo )] injunctions Were
practically unk wy, their ASsuanee/ has steadily increased
until there are few controCersies of substantial importance
between employers and émployees in which one or more
injunctions wil! not be issued out of either a State OF a
Federal court.
The right of wage earners to organize and to act jointly
in questions affecting’ wages, conditions of labor, and the
welfare of labor generally is conceded and recognized by
_ all students of the subject. Aniucreasing neseeeny for
_ the organization of labor has been brought about by ¥ mod-
ry injunetion and,
i the stage of official
ly with final decrees
rurts. Therefore, exact
YS
e
oped through governmental grants of authority:
far-reaching, . overwhelming concentration of our |
.in American Foundries v “Tri-City Council (257 U. S.°184,-
“, Aet as legal when instituted for mutual help and law-
44
P 7 ?
ern economic conditions and methods of doing business,
which have in the main been developed by- the aid of gov-
ernmental authority. ; <9
‘It is obviows that existing conditions under whieh: ‘large
employers of labor possess unprecedented power to dictate -
contracts and conditions of employment have been devel-
corporations and organizations of corporations, wher
thousands of owners of property are enabled to combine
hindveds of mplions yf dotiars of capital and, in this way,
substantially do contro and sometimes to monopolize o
portunities for employment. Sueliia power, unrestrained
by the organization. of labor, would pert’ ‘t employers athi-
trarily to fix the yages and conditions of labor under whieh
millions of men hn women would find their only. oppor-
‘tunity to earn a living. % my ;
A sitgle Inborer, standing ‘alone, confronted with such |
power, and compelled to labor for the support of himself
and family, is absolutely. helpless to ne otiate or to exert
any influence over the fixing of his wages or the hours and
conditions of his labor. A Thai must work in order to live.
If he can exercise no control over his conditions of em-
ployment, h¢ is subjécted to involuntary servitude
‘The efforts of the workérs to preserve their freedom of
association and their freedom in association-to influence
the fixing of wages and working conditions preseht. ques
tions which are unique and demand: specific legis!ative ae
tion. The situation has beeh very well described by Chief
Justice Taft in’the opinion of the court delivered by him
at p. 209), reading in part as follows:
fe
. * Labor unions are recognized by the Claytor
fully carrying out their legitimaté objects. * * *
They were organized out of the necessities of the sit
uajion. A- single’ employee was helpless in dealing
with an-employer. He was dependent ordinarily
his dgily wage for the maintenance of -himself and
family. If the entployer refused to pay him the
=_—
Xv
: Rey 4
wages that he thought’fair, he was nevertheless un-
able to leave the employ and to resist. arbitrary and
unfair treatment. Union was essential to give labor-
ers opportunity to deal on equality with their em-
ployer. * * * The right to combine for such a lawful
purpose has ‘¢n many years not been denied by anv
court. The strike became a lawful instrument in a
lawful economic struggle or competition between em-
ployer and employees ax to the share >. division be=-
‘tween ther of the joint products of labor and capital,
_ To render this combination at all effective, employees
must make their combination extend beyond one shop.
It is helpful to have as many as may bei in the Same
- trade. in the same community united, because/in the
competition between employers they are bourkd to be
% affected by the standard of wages of their tradeN the
neighborhood.
_ The foregoing opinion is cited with approval in the
unanimous opinion of the Supreme Court handed down
May 26, 1930, in Texas & New Orleans Railroad Co. v.
Brotherhood of Railway & Steamship Clerks, in. support
of the following statement in the opinion by Mr. ¢ ‘ied eolaps-
tice Hughes; ¥
The, legality of ‘collective action on the part of em-
ployees in order to safeguard their proper interests
- isnot to be disputed. It has long been ‘recognized
that employees.fre entitled to organize for the pur-
pose of seenringtthe redress of grievances and to pro-
mote agreement with employers réfating to. rates of
pay and conditions of work (citing the Tri-C ity ¢é ase)..”
Congress was not required to ignore this right af the
employees, but could safeguard it and seek to make
their appropriate collective action .an instrument of
peace rather than of strife.
é s
If we cone ede, as we must, that labor has the right to —
coubine tor the lawful purpos@ of securing employment -
and has likewise the right to eombine for the purpose. of
‘ecuring increased wages or bettering conditions of labor, .
then it follows, as the late Chief Justice Taft has so well
r
Si +
46
sindiedi that the strike asconi i lawful instrument in the
economic struggle between em dloyer and employee. «It
would be hypocrisy, however, to concede these rights to
labor and then to prohibit any ®ffective exercise of these
rights by labor.” The primary object of the proposed legis-
lation is ta protect labor in the lawful and. effective exer-
cise of its congeded rights—to protect, first, the right of
- free'association‘and, second, the right to advance’ the law.
- ful object of-association.
No one will. seriously doubt the right of Congress, under:
the Constitution, to limit the jurisdiction of Federal courts.
The jurisdiction, for.instance, of the district courts of the
United States is given by act of Gongress. Al! the courts
of the United Stafes. except: the Supreme Court could be
entirely abolished by act of Congress, and, while Con-
rress could not give to these inferior courts jurisdiction
ater than is provided by the Canstitution, it eduld, on
_ the other hand, within the limits of the Yonstitution, give
to the inferior courts such jurisdiction.as Congress in its -
wisdom deems just. It follows, also, that having given
this jurisdiction, it can, by act of Congress, take away bs
or any part of it.. This -has, been clearly held by. tlie
‘Supreme Court of the’ United States in Myers v. United
States (272°U. S. 92). At page #130 the Supreme Court.
said:
"*- * *- Tt is clear that the there establishment
Federal inferior coyrt doés hot vest that court Wi
- ali the judicial power of the United States as con-~
ferred in the second section of Article III but only —
that conferred by Congress specifically on -the par-
ticular court: It must be limited territorially and in —
the classes of cases to be heard; and the mere crea
tion of the’ court does- not confer jurisdicQon except
as it is conferred in the law of its creation or its -
amendments.
In an earlier case the Supreme Court held: »
The judicial power of the United, States, although
,it has its origin in the Constitution, is (except in
enumerated instances, applicable exclusively to this
C-
ee Ee
wu
court) dependent. for its distribution and organization,
and for the modes of its exercise, entirely upon the —
action of Congress, who possess the sole power of
creating the tribunals (inferior to the Supreme
Court) for the ‘exercise of the judicial power, and of
4nvesting them with jurisdiction either limited, con-
current, or exclisive, and 6f withholding jurisdiction
from them iri the.exact degrees and character which.
to Congress may’ seem proper for the public good.
(Cary «. Curtis, 3 How..235 (U. 8S.) at 244.) \
In a fairly recent case, the Supreme Court, construing
the power of the inferior Federal courts to’exereise juris-
diction over controversies between citizens of different |
States, pointed out that:
The right of a litigant to maintain-an ae tion in a
Federal court: (on this ground) is not one derived ©
’ from the Constitption of the United States,. unless in
a very indirect aghsé, ve
And continued: * i
C Serta it is not a right united by the Constitu-
tion * .* * The Constitution simply gives to the in-°
ferior courts’ the capacity to take- jurisdiction in the
enumerated cases, but it requires an act of Congress
confer it.’ tare A’ right which thus comes into
_ existence only by ¢irtue of an act of Congress, and \
. which may be withdrawn by an act of Congress after’
its exercise has begun, can nat well be described as a
constitutional right. (Kline v. Burke Construction
Co., 260 U. S. 226, 2% 33.) . :
Public: : Policy ‘
Relief by injunction is an extraordinary and harsh rem-
edy. It should not be resorted to except in cases where
such uction is imperatively demanded; and yet injunctive
relief is often the only adequate and effective elief against
many wrongs and to prevent many irrepara é injuries in
controversies of infinite variet
‘It is not sought by this bitbao take away: from the judi-
cial power any jurisdiction to restrain by injunctive
48 °
Ke ay
precess unlawful acts or acts of fraud or violence. In
order to assist, the, gourts ini the proper interpretation of.
ithe proposediefbuislation, it has been attempted to de
slare, by aét GE Longress, thé public policy of the United
“Shates in relation te: lxbor:disputes and the issuing of in-
junctions in connection therewith. This is done in Bas 5:
tion 2 of the proposed substitute bill, as follows:
* * *
Whereas under prevailing economic condi-
tions, developed with the aid of’ governmental au-
thority for owners of property to organize in the cor-
porate and other forms, 3 ership. association, the
individual unorganize¢ WORE Riis,
to exercise actual Hibert?Of cOtiimact and to protect
his freedom of labor, and thereBY¥ fo Obtain acceptable
terms and conditions of employment, wherefore it is
necessary that he have full freedom of association,
‘ self-organization, and designation of representatives”
of his own choosing, to-negotiate the terms ‘and con-—
ditions of his employment, and that he shall be free .
from the interference, restraint or coercion of .em:
ployers of labor, or their agents, in the designation
‘of sueh. representatives or in self-organization or in
other concerted activities for the purpose of collec.
* tive bargaining 6r other mutual aid or protection.
It is heliev ed that the public policy. of the United States
thus-declared is free from any. possible objection and
fundamentally beyond criticism if we desire to give those
who iabor equal opportunity in the economic world with
the employers of labor. 7
In the case of Texas & New Orleans Railroad Co. ¢.
Brotherhood of Railway & Steamship Clerks, decided May
26, 1930, previously quoted,” the court had under consid-
eration th ovision of the railway labor act, confirming
' in railway loyees the right of self. organization ‘‘free
, ference, influence or coercion’’ of employ-
ers. It i oted that this right of employees, writte:
into the railway labor—aet, is the same right - which -is
affirmed in the declaration of f publie_policy in the pro-
posed bill, which affirms, in section 2, the emptoyee’s ‘ ‘fall
freedom of association, self-organization and designation
?
Sete
of representatives of his own choosing,’’ and provides .
that the employee ‘‘shall be free from the interference,
-restraint, or coercion of employers of labor.’’ Therefore,
_ the decision of the Supreme Court of May 26, 1930, sus-
taining the constitutionality and the enforceability of this
right of employees under the railway labor act, directly
-and conclusively sustains the constitutionality of the dec-
laration of policy in the proposed bill and the provision
of the propesed bill making contracts contrary to: such
public policy nonenforceable in the Federal courts. In
this most recent opinion, the Supreme Court held:
Such collective action (of employees) would be a
inockery if representation were made futile by inter-
‘ ferences with freedom of choice. Thus, the prohibi-
tion»by Congress of interference with the selection of —
re resentatives for the purpose of negotiation and
-conference between employers and employees, instead
of behg an invasion of the constitutional right of
’ either, was based on the recognition of the rights of
both. ee a
It is ao equally ‘ae that the ‘Cuainia ‘ae the right
to declare. the public policy of the United States so long
_ as the policy thus declared does not conflict with the Con-
; stitution.
_ * .Where Congress ‘aia not clei the public policy it is
within the province of the court to decide what the pub-
lic policy is, but when such public policy has been. de- .
‘clared by Congress it.is the duty of the courts to follow
such poliey and to. decide litigated questions related
thereto’ in, accordance with the public policy thus declared.
In thé case of the People v. City of Chicago (321 Til.
. 466-475) the Supreme Court of Illinois said:
The public policy of a State is to. be found siitadioa |
in its constitution, its. statutes, and, when these are
silent on the subject, in the decision of its courts.
The public policy: of the State, when not‘fixed by the
q Constitution, ‘is not unalterable but varies upon any <.
given question with changing legislation thereon, and
any action which, in the absence of legislation thereon,
{
% o
by the decisions of the courts has been‘ held, contrary
to the public policy=of the State, is no longer con-
_.trary to such public policy when such action is es-
pressly authoriaed by legislative enactment. °
Another Illinois case ‘On. this subject is U nion Trust. &
Savings Bank v. Telephone Ga, (258 Ill. 202). The Su-
preme Court of Illinois said: eg
foe: While no statute has been enacted-declaring such
exclusive contracts.criminal or giving a right of action:
to persons prejudiced by them, the courts have de-
clared the public policy of the State, in accordance: .
with the common law, to be opposed to such contracts ©
which tend to put the power to render public service
in the hands of one corporation and to take it away
from all others. The legisiature has the power to .
- change this policy. It is a legislative question whether
the public interest will be promoted by monopolistic
rather than competitive ‘service.
Chief “Justice Marshall, in’ the case. Of MeCulloch Y
Maryland (4 Wheat. (U. 8S.) 315, 423), used the following
language:
Where the law is * * * calculated to affect any of
the objects intrusted to thé Government, to under —
_ ®@ take here to inquire into. the degree of its necessity,
would be to pass the line which ¢ircumscribes the
judicial department, and to tread on {@rislative
ground. i ." 3
‘The Supreme Court has expressly upheld the jurisdic
tion of Congress to declare the public policy of the Unied
“States in ‘the ease of Michaelson rv. United States (266
U. S. 42, 68). In that ease, the following language was
used: | : ! AERA
The: words of the act are plain and’in terms -incl-
‘sive of all classes of employment; and we find noth
ing\in them which requires’ a resort to judicial con-
struetion, The reasoning of the court below really
- does not present a question of statutory construction,
\
|
but rather an argument justifying the supposititious
exception on the ground of necessity or ef policy—a
matter addressed to the legislative and not the ‘judi-
cial authority. _— ; ‘
The decisions and opinions of she Sufreme Court of the
United States in Bailey v. Alabama (219 U. 8S, 219) are
significant in this connection. In that case the majority
of the court held that a statute although in terms punish-
ing a man for fraud in violating a contract to work, had
the ‘‘inevitable effect’’ of convicting him of a crime in
. simply refusing to work and thus antosead peonage. This
was held to be unconstitutional, in‘conflict with the thir-
teenth amendment, which was iritended, as held in the -
‘majority opinion by Mr. Justige Hughes ;
* * * to make labor ree, by prohibiting that con-
trol by which the personal ¥ervice of one 1ftan is dis-
- posed of or coerced for anofher’s benefit, which is thé
essence of involuntary’ servitude. yt
The opinion further stated:
_ There is no more important ‘once than to safe-
_ guard the freedom of labor upc | which alone can en-
during prosperity be based.
It is noteworthy in this case that the) dissenting opin-
ion by Mr. Justice Holmes proceeded on the ground that ‘
the contract in question (to render services in considera-
tion of.an advance payment) was in itself a legal one,
and that thérefore a‘ran could be legally’. punished for
obtaining money by making such a contract with a fraud-
ulent intention of breaking it. He met the argument that
the enforcement of such contracts would result in peonage
. by the pertinent comment: ‘If the contract®is ‘oné that’
ought not to be made, prohibit it.’* ‘Thus, beth opinions
already support the right of Congress to declare contracts
resulting practically in involuntary servitude to ‘t con-
trary to publie policy. and to deny “their enforceability or
validity in the Federal courts.
_ The declaration of a public policy is not new to the -
Congress of ‘the United States. Such a policy is explicitly
declared in the present railway labor act,’ as previously
We
i Vn
Je
rioted.. In this connection, it is exceedingly interesting to
trace the history of that act. Opifinally, in the trangpor-
tation act, it was provided | that {disputes between employ-
ers and employ ees shouldjif’possible, be ‘‘decided in con-
ference between representatives designated and authorized
so to confer.” In administering this law the labor board
found great difficulty on account of the interference by
- employers with the free designation of representatives by
the employees. The chairman of the board appeared be —
fore the Interstate Comyperce Committee of the Senate and
explained the trouble. (See Hearings, Interstate Com-
mereéd Committee of the Senate on S. 2646, 68th Cong., Ist
sess.) “On account of 4his difficulty, the present railway
labor act included this specific provision :
Representatives, for the purposes of this act, shail
be designated by the respective parties in such man-
ner as may be provided in their corporate organiza-
tion or unincorporated association, or by other means |
of collective action, without interference, influenc, or
coercion exercised by either party over the self-or-
ganization or designation of representatives by the
* other. (Par. 3, see. 152, title 45, U. SC. A., 1929.
sup.)
This act definitely declared the same public policy in
regard to railway employees as is declared in the pro-
posed bill in regu.d to-all employees, and this provision of
the railway labor act has been sustained by the United
_ States Supreme Court in Texas & New Orleans Railroad
Co. v. Brotherhood of Railroad & Steamship Clerks, de-
cided May 26, 1930, as previously cited.
' Another instance in which Congress declared the pub -
Ise policy of the United States is found in section 15a of
the interstate commerce act, passed as a part of the trans-
portation act of 1920. The language yeferred to in: that
act is as follows:
Inasmuch as it .is impossible. Cwiehan’ regulation.
and control in the interest,of the commerce of the
United-States considered as a whale) to establisii uni-
form rates upon competitive. traffic which will ade-
quately sustain all the carriers which are engaged in
such traffic and which aré indispensable to the com-
munities to which they render the service of transpor-
*tation,-without enabling some of such carriers to re-
and unreasonably in excess of a fair return upon the
value of their railway property held for and used ‘in
the service of transportation, it is hereby declared
_ _ that agy earrier.which receives such an income so in
~ ex¢ess of a fgir return, shal! hold such part of the
“excess, as heftinafter prescribed, as trustee for, and
shall pay it to, the United States. (41 Stat. 489.)
The declaration by Congress of the public policy thus
declared was interpreted and ‘sustained by the Supreme
Court of the United States in the case of Dayton-Goose
Creek Railway v. United States. (263 U. S. 456.) The
opinion of the court in‘ this case shows that the act was
interpreted and sustained upon the grounds of the public pol-
icy thus declared by Congress. The court in that case
said: .
The new act seeks affirmatively to build up a system
of railways prepared to bandle promptly all the in- -
terstate’ traffic of the country. * °* ° To achieve
. this great purpose, it puts fhe railroad systems of
the eountry more completely than ever under the
fostering guardianship and control of the commission:
Title IV of the transportation act, embracing par-
agraphs 418 and 422, is carefully framed to achieve
its expressly declared objects.
' The publie poliey of the United States in regard to dis-
' putes between labor and employers of labor, having been
declared as provided in th br bill, it will become
the duty of the courts to ¢ out this policy and to up-
hold it in passing upon any litigated questions which may
arise under the act. Such a declaration of public policy
should be of great assistance to the courts in the adjudi-
cation of any controversies which may arise. -
\
~_
ceive a net railway opérating incomeé* substantially . ~
The “Yellow Dog” Contract :
One of the very serious difficulties which has arisen in
many of the injunctions which have been issued in labor
‘disputes has been the so-called yellow-dog contract. This
cpntract is one which requires the employee, as a condi-
tion of obtaining employment, ta agree that he will not
join a union while he-is in such émployment, or,#that if ,
- he is a-member of a union, he will disassociate him-
self from it; that hé recognizes the right of the employer ,
to discharge him without notice; that he will not qui
e
s
without giving to his employer notice sufficient to enable
the employer to hire some one to take his place. Such
contracts frequently require the employee to agree in ad-
vance to accept sueh conditions of labor, hours of labor,
ete., as may from time to time be decided upon by his
employer. Not all of these contracts are the same, but, in
general, the conditions are such as those which have been
_. briefly outlined. In all of them the employee waives his
right of free association and genuine representation in
connection with his wages, the- hours of labor, and other, .
conditions ef employment. In other words, he surrenders
his actual liberty of contract and to a great extent he en-
ters, into involuntary servitude. Yet the Supreme Court
has held very recently that ‘‘collective action would be—
mockery if representation were made futile by interfer-
erice with. freedom of choice.’’ (Texas & Néw Orleans case
‘previously cited.)
It is no defense to say that he is not compelled to sign
a contract, as is so clearly pointed out in the citation from
Chief Justice Taft heretofore quoted, He is helpless in
dealing with his employer. This was not always true. It,
is only under modern conditions where, under the law, em: ~
ployers organize; where large corporations control, labor
in an éntire line of industry. He is dependent upon
daily wage and so is his family. Therefore, he must
cept witatever wages and whatever conditions are laid
down by the employer... He has no other course to pursue.
Union on his part with his fellow workers is absolutely:
necessary to protect his own liberty and, if he signs away
Q- : 3°
rae —“
this right, to a great extent he bécomes the slave of his
master. Find
~, In sustaining’ the right of railway einployees to-organize
the Supreme Court held: = 4°\
—s ‘
Congress was not required to. ignorogthis right of
the @nployees*but could safeguard it ‘and seek to make
their appropriate collective action an instrument of
peace rather than of strife. (Texas & New ope
case previously cited) ase =
te
This doctrine. upholds the purpose of the proposed bill. :
One 6f the objects of this legislation’ is to outlaw this
‘‘vellaw dog’’. contract. It has become necessary for Con-
‘ gress to take some action in regard to these contracts, be-.
cause many of the injunctions which-have been issued by
Federal courts have .been based wholly or in part upon.’
such contracts on the assumption that ‘they are walid and
not contrary to public policy. ry
At the first blush it would seem unnecessary to pass any
legislation upon. the subject, because it is difficult to see
how any court:could sustain such a contract everi ‘though
there were no statute condemning it. Many of the most
eminent jurists have always bel ved that such contracts
were void for several reazons. -
First. They are contrat} public policy. If these con-
tracts are held to be legal in one type of litization, it would
follow that they must be ‘held legal in all other ie ae
versies, and thus in order to sustain-life and support fa
ilies, laboring men may be compelled to enter into practi- —
cal peonage. If men must agree in advance to surrender
any real liberty of contract in’order to attain employment
they. are, under coercion of necessity, forced into working
, under conditions of involuntary servitude.
Second. These contracts should bé held void because
they are entered into withouf conside: ‘stion. The employer
_ on they@Je hand has his work which he ‘wants done. -The
labor@rgn the other hand, as a consideration for his
_ part of the contract, undertakes to perform, the labor. «In
“a
, a
practically every caéé there Ao hiring for a definite
period; no assurance of either work or fixed wages. The
employer gives up. none of his freedom of action and for.
nishes no consideration for the promise of the employee
' that he will surrender ordinary rights of ‘‘liberty of con-
tract’’ which are inherent in-every free citizen.
Third. Such’ contracts ‘should be held void’ because they
are signed by the employee under coerciqn. The employee
is forced to accept all of these burdensome conditions in
order to support himself and family, because no man will.
voluntarily deprive himself of, his power of self-protection.
Nevertheless, since such contracts have been held by the
arp to furnish a legal basis for provepting employees
rom organizing for self-help, it seems to be necessary that
some, legislative action should be taken to liberate workers
from a servitude thus imposed. The bill declares that
such éontraets are: |
contrary to the public policy of thé United
States, shall not be enforceable and shall not afford ‘
‘any basig for the granting of legal or —— relief
by any court of’ the United States.
Abuses of Injunctive Power
One of the indefensible things contained ir a great mans
of the injunctions issued by Federal judges'is the etijoin-
mg of any person, organization, or corporation from pay-
ing benefits to laborers who are engaged in carrying on 4
strike. _ As a rule, labor unions, provide for a fqnd out of
which they pay benefits to their members who are out on
a strike. These-injunctions prohibit them from paying
sola benéfits, although the accumulation ‘of this fund has
” been in part contributed by the very men who are on 4
strike and under the rules of the union they are, as a mat-
ter of fact, entitled to these benefits,
‘ Some of these injunctions ge still further. They not™
irs prohibit he unions from paying any“strike benefits to
men who are ona strike, but they” prohibit any person,
whether a member of the union or not, from in any’ way
giving any assistance to the persons wio are on the strike. “
)
abe
‘Ne 57
It is ¢ common thing, in the operation of coal minesefor
the owners of the mine to own the houses in which the
laborers live. They make a contract with the laborer for
the rental which shall be paid, providing also for the sur-
render of the premises under conditions named in the con-
tract of lease. :
If a dispute arises aetween the employer and. the em-
ployee as to whether the contract hgs been violated ancl
as to whether the owner is entitled to dispossess the em-
playee, the question becomes one of forcible entry and de-
tainer under the Jaws of the State where the property is
located. These laws usually, if not always, provide for the
trial of foreib entry and detainer cases before an inferior
court. Kither side, being dissatisfied with the decision of
‘ the court, has the right to take an appeal. If the appeal
is taken by the tenant he must put up a bond, not only to
pay the costs, but to pay @ reasonable rental for the prop-
erty in case the decision i in the higheryeourt is against hin’.
This is a right. given him nnder the State-law. The Statt
law is general and applies to every one. It is. the only:
means by which the question in dispute between landlord
and tenant can be fully decided. Hf'a tenant is wrongfully
Withholding the property the landlord is protected by the
bond which the tenant must give providing for the pay-
ment of rental if the case shall ultimately be ss
against him. Yet, strange as it may seem, Federal jud
have been in the habit of issuing injunctions atnbine
outsiders—usuaffy the term used is “‘any person whomnso-
ever’ ’_from, doing anything fo assist the laborer in A
foreible entry and detainer ease pending in the State court.
All persons are enjoined from furnishing bonds to take
those eases up on appeal, All persons are erjoined from
paying any money in the way of expenses in connection
with such litigation in the State courtsa_The injunctions
often, go far enough tesprevent an attorney from giving
any advice to the employee who is trying to hold posses-
sion ‘of a house: belonging to the employer. All persons
are Testrained from giving them any assistaricé while they”
“are living in these: hotises, including*Yood and fuel. Why
the judges of the’ United States, by extending the extraor-
dinary remedy of _injunetion, phoule prohibit: laboring
ad
‘ 58
men from litigating in State courts, ‘ebder the law of the:
‘State, to sustain what they claim fo be their rights, is
almost beyond human comprehension. In truth, such a |
axy /ther class of cases,
“The bill, under sectiofP 4, takes away f rom all Federal:
courts the_power to issue such injunctions. It also, in the
"summary method of deprivisgpersons of their “day j in
ey Peg never been held to be ‘‘due process of law’’ in
.same section, prohibits the issuing of injunctions which
restrain employees from—
Mister co assembling panocably to act or to organize ;
to act in promotion of their interests ina labor dispute.
.
It prohibits Federal courts. from issuing injunetions re-
‘straining anyone from inducing or advising without threat,
fraud, or violence,-any of these things regardless of
whether the employee may have signed the so-called ‘‘yel-
low-dog”* contract.
* Section. 4 also se Ne granting of inijunctions
which would restrain strikers from giving ppblicity to the
existence of or the facts involved in a ior Aen One
of the most recent ‘injunctions in a labor dispute was is
sued in the District Court of the United States for the
Northérn District of Iowa. This injunction was issued on
the 29th day of March, 1930, enjoining the defendants,
among other things, from— *
. * * * printing, publishing, issuing, cirgulating and
distributing, or otherwise communicating, .directly or
-indireetly, im writifg or pverbally to any person, asso
ciation of persons, or corporation, any statement or ,
notige of any ind or character whatsoever, stating
or representingé
Pe OTe
(1) That there.is a strike at the mill or plant of
complainant at Fort Dodge, Iowa; or that the strike
of 1921 is still-jn existence; or that there is a con-
troversy over wages or conditions of employment be-
tween complainant and its employees; or any false
statement with reference to conditions of employment
at complainant’s plant. — . bh
.
29 ah ee ‘d
(2) That complainant is unfair to organized union
labor, or that its products are or were unfair to or-
ganized labor, or are on an unfair list. ey
(3) That -complainant forces or requires its em- |
ployees to sign or subscribe to the so-called ‘‘yellow-
dog’’ contract.
- The defendants in this case, it will be observed, were
not allowed to tell anyone that a strike was in progress.
They were not allowed to give any publicity in any wavy’
to the fact that a-strike existed. They were not allowed to
tell anyone that the complainant required its employees to
sign the ‘‘yellow-dog’’ contract. In other words, their
mouths were absolutely closed and ‘‘free speech’’ was for-
bidden. They could nét, without violating this injunction,
have sought advice from an attorney. The scGn would not
be allowed to see advice from his own father. And if
the’defendants violated this severe decree they would be
liable for contempt of court, which- means that ‘they would
' be tried for an offense made illegal by the judge—an
offense consisting “of an act hich would be perfectly la¥*
ful tinder the laws of the State where the controversy -ex-
isted. _They were not.only forbidden to violate this jud&®
made statute, but, ia case they did violate it, they.would
be tried by the man who made the statute. They would
not be allowed a trial before a jury of their peers—a privi-
‘lege granted ‘to the vilest of criminals.
It has long been recognized by students of law and gov-
* ernment that the power to make law and the power to en-
force law should be separated as a protection against
tyranny. To prevent executive tyranny, the legtslative
power has been carefully « separated ‘from the executive
power in our scheme of: government and-to prevent judi-
cial tyranny it is-equally necessary to preserve the .sepa-
ration of ‘the legislative power from the judicial power.
A warning against the growing exercise of legislative
power by thé’courts in injunction éases was uttered long
ago by the great commentator, Blackstone, in the follow.
ing language ; 3 .
Tn all tyraunical government, the supreme magis-
tracy or’ the right of making and enforcing laws is
A
v
60
vested in one and the sameé’man, or one and the same.
body of men; and wherever .these two powers are
united together there can be ho public liberty. (
Blackstone 142.) |
It is amazing'to realize tliat in the last 40 years there
has developed in the American courts the practice of writ- _
ing a special law to fit the individual case by judges in
issuing labor injunctions; and that. thereupon the judge,
who himself wrote the law, has undertaken to preseribe
.the penalty for ils violation and to punish the violator
ww
without permitting the accused to enjoy a trial by, jury or
even to insist upon a trial before another judge. It ean
not .be successfully claimed that, thé courts have not
written into these injunction cases a new law of labor dis-
putes, fitting the law to each particular case, and then en-
forcing this new law made by the court. :
Romeroy, perhaps the leading authority, describes the .
development of the law compactly in his Equity, Juris
prudence in the following language:
The courts have thus been required to face sueb
questions as the nature and extent of the capitalist’s
rights in the managemerit of his business and of the
workingman’ $8 property in his labor; to decide how
far the employer shall be protected in his right to
_ have labor a id custom flow to him free from the in-
terference of third, parties and how far the laborer
‘shall be protected from similar interference in his
contract 6f employment or his right to secure employ-
‘ment; to determine what limits shall be placed upon
the individuais and combinations of individuals in
seeking their economic advancement at the expense
of their fellows. +All these’ and other problems have
come before the courts in rapid succession. (Pome-
roy, Equity hen 408 (4th Ed.) vol. 5, P. 4566,
sec. 2018. ie
There can be 10-question, therefore, that eins has been
created, as a résult of writing law into ‘injunction orders —
and then enforcing those orders by the sanie judge who
wrote them without a grant of trial by \jury, that condi
a
61
tion of uniting the two powers of making and enforcing
laws ibone person or one body of, men ‘unt using ‘the
Janguage of Blackstone, ‘‘there can be no public liberty.’’
It is difficult to see how any civilized people could in-
definitely submit to such tyrannical procedure. It is not
difficult to understand how such cruel laws, made not by
any ‘legislature but by a judge upoy the bench, should
‘bring our Federal courts into disrepute. Neither is it’
difficult to see how such injunctions, violating the con-
science: of “ivilization, should frighten persons against
whom- such injunctions are issued in desperation. What
free American citizen is willing to submit to the violation
_ of his saered rights of human liberty and freedom?
Responsibility for Unlawful Acts
Section 6 of the bill relates to damages for unlawful acts
arising out of labor disputes. It is provided that officers
and members of any labor organization, and officers and
members of any employers’-organization, shall not be held
liable for damages unless it is proverf that the defendant
either participated in or authorized such unlawful acts, or
‘ratified such unlawful acts after actual knowledge thereof.
To hold that*officers or members of a labor organization,
or the organization itself, should be liable for damages
for unlawful aets. committed: while a strike is on, without
clear, actual froof of authorization, participation in, or
ratification of such unlawful acts, would go far toward the
destruction of organized labor. :
Moreover, it will.be observed ‘that this section, as do -
most of the other prohibitive sections of the bill, ap-
plies both to organizations of labor: and organizations of
capital. The same rule throughout the bill, wherever it is
applicable, applies both to employers and employees, and
also.to organizations of employers and employees.
; In most cases where strikes oecur involving a great
many employers and employees and covering a compara-
tively liftge territory, there are often unlawful acts com-
mitted in the way of injury to property or to persons. It
is not the intention of the bill to protect anybody, whether
he he employer or employee, from punishment for the
commission of unlawful acts either as aghinst property or
62
persons. But no person or organization should be held
thus liable unless’ he or it caused the unlawful act or par-
ticipated in it or ratified it. It has often occurred that
employers themselve¥ have secured the services of ‘detec.
tives who, under the guise of labor men, have: gained ad-
mission into labor unions. When this happens these de
tectives are usually doing everything within their power
to incite employees who are on strike to commit acts of
violence, and such detectives, contrary to the definite ir.
structions of labor union leaders, sometimes commit un-
_‘. lawful acts for the express and only purpose of laying the
foundation for injunctive process, of bringing discredit
upon the union, and of making its officers and members
- liable for damages.
In case of a strike, where the officers of the labor union
are doing everything within their power‘to prevent aets
of violence from being committed by any person, the law
should fully protect them and save them and the members
of their: organization who are following their advicé from
liability in damages because of: unlawful acts of persons
who. are either directly or indirectly connected with those
who are trying to defeat the purpose of tlhe strike. —§
Opposition to this section has been voiced on the. ground
that it seeks to-establish a ‘‘new-law of agency:’’ In the _
‘first place, this section is concerned especially with estab-
lishing a fule of evidence. There is no provision made re-
lieving an individual from responsibility for his acts, but
provision is- made that a person shall not be held responsi:
ble for an ‘‘unlawful act’’ except upon ‘‘clear proof”’ of .
participation or authorization or ratification. Thus a rule
of evidence, not ‘a rule of substantive law, is established.
‘‘The general power of every legislature to ~prescribe the
evidence which shall be received and the effect af that evi-
dence in the courts of its own’ government,’’ has been re-
peatedly upheld by the Supreme Court. (See Fong Yue
Ting vU. 8., 149 U.S. 698, 749; Bailey vr. Alabama, 219
U.S. 219, 938.)
But the Sete issmade that a man is held legally-re
sponsible for the acts of his agents taken in due course of
employment. This argument is evidently based upon.4-
doctrine of the civil law of negligence. It has no appli-
+ ; 4
~ ; rg 9
6. )
cation to the criminal law. If a man is held responsible 4
for an yalawful act, his responsibility rests on the basis of
: Dar implied participation. He is responsible for con-
spiring to do an- unlawful act or for setting in motion
forees intended to result, or necessarily resulting in an.
unlawful act. /
Strictly speaking, the legal felation of principal
and agent does not exist in regard to the commission.
of crintinal offenses. All who ‘participate in the com--
mission of such offense are. either pyncipals or ac-
cessories. (Anderson v. State, 22 Ohio State 305.)
But where the agent’s criminal act is unauthorized -
and is not sanctioned: or ‘acquiesced in by the prin-
cipal, especially where it is contrary io the principal” Ss
direct instructions, the latter can not be held erin
inally ‘responsfble ‘therefor. (Clark and Skyles, Lay,
of Agency, Vol. ‘T, p. 1140.)
The distinetion shquld be clear. A man operating a dan-
zepons machine negligently injures someone, and the neg-
ligence is imputed to the employer. But there is a distine-
tion between the torts of an employee and the crimes of
an employee, and criminal responsibility is not to be im-
puted. If the president of. corporation sends a bill col-
lector to persuade a debtor to pay a bill, instructing him
to collect it in a peaceable» manner,. he does not become.
responsible for an assault by his employee upon the debtor.
According to the same reasoning, why should an officer
of a labor union, who has. specifically advised members
*, that violence must be avoided, become responsible for the
‘hot-he; aded: action of some member in perhaps assaulting
a strike-breaker? Again, the relationship between officers
and members of labor unions and other members ‘is not .
that of employer and-employee. The officers chosen by a
union are not employers of the membership. They have.
no control over their’associates based upon the power of
determining whether or not«they. will employ them. It.
may be accepted that if a group associated i in common ac- —
tivities becomes controlled. by*a lawless majority, it may.
be nee essary for law- abiding men’ to:dissolve thelr asso-
ciation with lawbreakers; but the doctrine that a few law-
less" men can change the ‘character of an organization
64
whose members and officers are very largely law-abiding '
\-is one which has been developed peculiarly as judge-miade
. law in labor disputes, and it is high time that, by legisla-
_tive action, the courts should be required to uphold the
long established law that guilt is personal and that men
can ouly*be held responsible for the unlawful acts of asso-
ciates because of participation in, authorization or ratifiea-
tion of such acts. .As a rule of evidence, clear: proof
should. be required,:’so that criminal guilt and criminal -
responsibility should not be imputed but proven beyond
reasonable doubt in order: to impose.liability.
There has been a distinct conflict of opinion in the courts
as to the degree of proof required. Mere ex parte ‘alli
davits establishing a certain amount of lawless conduct in
‘the. prosecution ofa strike have been held in some in-.
stances to establish a ‘presumption’? that the entire union
and its officers were engaged in. an unlawful conspiradg;
and, on the other hand, other courts have. declined thus :
.to substitute inference for proof, rejecting such a doetrine
in language such as the following used in a New York
case: ‘‘Is it the law that a presumption of guilt attaches
to a labor union association ?’’ Various examples of these
different rulings are quoted in The Labor Injunction, by
_ Frankfurter and Greene, pp. 74-75.
It is appropriate and negessary to define by legislation
the proper rulé of evidence to be followed in this. matter:
in Federal courts, That is the only object of section 67
‘The bill, in section 7, provides for the procedure which, -
_ shall be followed in case application is made for a tem-
porary restraining order or for a temporary or permanent
_ injunetion. It provides that no temporary or permanent
injunction shall be issued except after. hearing th testi-
mony of witnessex, undef oath, in open court. . ‘Thy court
is also required,before it issues a temporary or pekmanent
injunction, to permit the defendants. to offer testimony. in
opposition to such. injunctions; and, before the court is
authorized to issue the temporary 0: permanent injune
tion, it must find that unlawful acts have been threatened
_ or committed and will be executed or continued unless re. -
9 .
65
strained; that substantial and irreparable injury to com-
_plainant’s property will follow, and that as to each item °
of relief granted greater injury will bé inflicted upon com-
_ plainant by the denial of relief than will be a upon
defendants by the granting of relief.
This procedure balances the effect of an order upon both
parties, and while an injunction might be granted against
‘certain unlawful acts the injury to complainant from such
--aets can not be made: the basis of enjoining other acts
from which complainant will suffer but little, but the pro- -
hibition of which may cause greater injury to the defend-
ants. This is only statutory sanction of the best and long
established practice, in equity. (See Pomeroy, Equity
Jurisprudence (4th ed.), see. 1685.)
It is likewise: provided in section 7, that in addition to-
the ordinary requirements applying to all applications for
injunction, the court must find—
That the public officers charged with the duty to
protect complainant’s property have failed or are un-
— able to furnish adequate protection.
This is an entirely new ey but it is believed to
bea just one.
These injunctions are teaneil upon an allegation, among
other things, that unless the order is issued complainant’s
property will be injured or destroyed. If the public offi-
cers whose duty it is to protect complainant’s property
‘ are able and willing to give the protection required by
law, there is no reason why the court of equity should take
over the functions of the executive department and under-
take to police their districts and no reason why the ex-.
traordinary and one-sided remedy of an injunction skould
be resorted to. It seems, therefore, but fair that before
the injunction is issued, the court should find‘ from the
evidence that such officers have failed or are unable to
_ furnish the -pretection required by law.
Injunctions are often applied for and issued: for the .
moral éffect that such ‘injunctions will: have in -disheart-
ening and discouraging employees engaged in. a strike,
Tather than because of any rom necessity to protect prop-
erty. ‘ / >
ob : ppiy Aik.
66
Provision is also made in the bill for the issuance of a
temporary restraining order without notice. This can be —
done only if the complaint | shall allege that such tem-
porary restraining order is necessary and that if time is
taken to give notice a substantial and irreparable injury —
to complainant *s property will be unavoidable.
Before issuing such temporary restraining order, hew-
ever, the court must take testimony under oath, and such
testimony must be sufficient, if sustained, to justify the
* court in isguing a temporary injunction upon a hearing
_after noficea.-
Injunetions issued without notice to the defendants
against whom the injunctive order is sought ‘are always
ex parte. No good réason exists why this evidence this
taken, without the presence of the defendang, should not
be required to be sufficient, if sustained, to sustain ab
- order issued after notice and hearing. If the complainant
‘can not make a prima facie case without notice, he cer-
—tainly never would be able to make such.a case after no-
tice when the defendant was in court contesfing the igst- ;
ing of the injunction.
The bill provides that such EN wr restraining order
so issued without notice shall not be effective for a longer ~
time than five days. This, however, is a reasonable re-
quirement. The only object in issuing a temporary re-
straining order without notice is because it is alleged by
the complainant that notice of. such application, would
bring about destruct!z@ of his property. Therefore, the.
time that such an extraordinary process should be effective
without notice should not be prolonged beyond the time
that it would take to give notice, and.it is difficult for any
mind to conceive of a condition where notice could not te
given and a hearing held within the 5-day limit. -
It is provided in section 8 that no restraining order oF
injunctive relief shall be granted to any complainant whe
has not complied with any obligation imposed bylaw in.
regard to the settlement of any labor dispute. Neither
shall ‘such order issue unless the complainant has made
every reasonable effort, to settle such dispute, either by
the aid of. negotiation or with the aid of any available
governmental machinery of mediation or voluntary arbi-
‘
tration. But where such negotiations are in progress and
have not been completed, the court is not required, before
‘issuing the writ, to await the outcome of such action if the
_ court is satisfied that irreparable injury is threatened.
This section simply requires that a coniplajnant shall not
be entitled to injunctive relief who has failed to comply
‘ with any legal obligations which.may exist, to be pep
. formed on his part. In other words, he must go into court
with clean hands. This doctrine here announced is that
.persons have no right to seek the aid of Federal courts
apd impose upon them additional burdens who have not
sought to do all within their power to avoid the aid of
the courts and who afte not themselves aggravating or
causing the dispute by violation of legal obligations.
It has often occurred, where employers have refused to
confer with their employees, as required by law; or where
they have refused to-comply with the requirements of the
law for the protection ef employees, that they have never-.
theless sought to have the court restrain the employees
from promoting their interests propérly in the resulting
dispute... An émployer who has himself brought on a con-
troversy by wrongful conduct is not entitled to the aid of
equity in advancing his interests in the resulting conflict.
A court of equity aets only when and as conscience ”
commands ; and if the conduct of the plaintiff be of-
fensive to the dictates of natural justice, then, what-
ever may be the rights he possesses; and whatever
use he may make of them in a court of law, he will be
held remediless in a court of equity. (Deweese rv.
Reinhard, 165 U. S. 386, 390.) :
Other cases and authorities upholding this principle
.“ritten into the proposed bill are cited in the recent opin-
ion of the Supreme Court of Wisconsin im Adler & Sons r.
Maglio (228 N. W.133), where the court denied injune-
tive relief and dismis the complaint of an employer
whose conduct was described by the court as follows:
Plaintiff pursued a course of — t that precipi-
tated a labor wars When the tide of battle seemed to
be setting against it, the plaintiff seught to withdraw
nn the field to which it had deliberdtely gone, ‘aidy
< appealed to a court of equity for protection from the -
/ consequences that naturally flowed from the 5
of conduct which it had deliberately pursued.
A court of conscience will not extend its stfong arm
to protect one who hes pursued such a course of con-
duct. It will leave such applicant for relief where it
had deliberately chosen to place itself. ol 125.)
re,
Later the court f urther upheld application “of the equi-
table rule in the following language: °
.
Its strict application to all labor controversies ouglit
to admonish both parties to:these modern industrial’
struggles, that, while they may conduct their own ‘af.
fairs in any way that does not vidlaté the law, neither ”
can be guilty of conduct that invades the rights of the
_ other in regard to, or all events connected with, the —
matter of litigation, so as to in some measure affeét
” the equitable relations subsisting between the two ‘par-
ties without forfeiting all right to resort to the extraor-
’ dinary powers of equity. (P. 126.) (See also Cor-
nellier v. Haverhill Shoe Manufacturers Association,
: ‘ "212 Mass. 554; Weegham +. Killefer, 215 Fed. 168;
Pomeroy, Equity Jurisprudence (fourth ed.) sec. 398.)
The bill also provides fora speedy appeal by any party :
to the case who may be dissatisfied with the action of the
court, either in allowing+e: denying the injunction; and
when a case is appealed to the circuit court of appeals, it
becomes the duty of that court to consider the case with
the greatest possible expedition and to give such cases
precedence over aJl ‘other inatters exenpt: older matters of -
the same character.
‘es ) Jury Trial. in Contempt Cnita' : 7,
gettin ‘t1 of the bill provides that where a’ person is
charged with indirect criminal contempt for violation of
a restraining order or injunction, the defendant shali have
the right to demand a speedy and public trial by a jury.
eax This requirement. does not apply to contempts committed
ae |
. hes
in the presence of the court or so-near thereto as to inter-
fere diregtly with the administration of justice. Neither
. doeg it apply to misbehavior, misgonduct, or disobedience
of any officer of the court in respéct to the writs, orders,
or process Of the court.
_ Section 12 provides that the defendant in any proceed-
ing for contempt of court is authorized to file with the
court a demand for the retirement of the judge a in.
the proceeding if the alleged contempt axope froffi an at-
tack upon the character or the. conduct 0
‘the finding of such a demand another judge shall be des-
ignated to hear the contempt proceeding, as oe in
tion 21 of the Judicial Code.
t will be observed that sections 11 and 12 have.a gen-
per application and are not confined to labor disputes.
The ordinary criminal ‘laws provide: that any person
charged with a crime shall have the right to a jury trial.
‘The person tried for contempt of court is tried for a crim-
inal act. ‘It is true this act has net been made criminal
by a statute, but by the order ofa judge. The judgment,
however, can deprive the defendatit of his liberty, can con-
fine him to jail, and the length of the term of confinement
is within the’diseretion of thie judge who made the- order.
The judge becomes the legislature and, as’ such legisla-
ture, he makes something a crime that is not a crime
~ under’ the general law. . He then sits in judgment and tries
the person who is. charged with violating the law which
he has enacted. What difference is it to the defendant, so
far as his punishment is concerned, whether the law has.
been made by the judge or by the legislature? His suf-
fering is just as great in one case asian the,other, Why
should he be deprived of 3
by one man instead of by the regular legislative \author-
ity?’ And in addition to all this, what defense can be made
of- the law which provides that the defendant shell have
ho opporturtity, not only for an impartial jury, but for an
impartial judge as well? And when the charge is made
‘ that the contempt arises from an attack upon the char-
acter or the conduct .of the judge, what principle of jus-
tice would permit this same judge to sit in,judgment upon:
CR?
the judge and.
if the attack occurred otherwise than in open court. Upon ‘
a jury trial when the law is made.
Q
ass
pee eto a
the accused? All sense of justice and all fair judicial pro-
cedure revolt at such a condition.
If an attack is made upon the character or the conde
of the judge by a writer in a newspaper, for instance, is
it fair, is it compatible with our idea for jurisprudence, that |
the judge against whom the attack is made: should preside
at the trial of the offender? Suppose a judge were as.
saulted onthe street by a common thug. Our procedure
would not permit this judge to sit at the trial of the per-
on charged with the assault and battery. He would te .
tried under the laws provided by the legislature. In an
injunction case, the general laws of the legislature would
not apply. The person assaulted would not only preside
at the trial but he would fix the punishment without re-
‘ gard to statute bat in accordance with his own idea as to
what the punishment should be. .
‘It is interésting to note that> severe as was ancien} law,
it was.the prevailing practice in the English -courts for
centuries that Sitale for criminal contempt were trjed by
a jury. It is only in the American courts in the. last cen-
tury that such trials by the judge alone developed. And
yet we live,under a Constitution which prov ides that—
In, all criminal prosecutions i accused shall, enjoy
the right to a speedy and public trial by an impartial
: jury of the State and district wherein the crime shall
have been committed. (Amendment 6.)
Also— | Lig, So a
-- The trial of ‘all crimes, except in cases of impeach:
ment, shall be by jury. act IIT.) :
ject to serious - question. "Criminal contempt ‘consists 0 a
_ disobedience of the orders of the court, obstructions t
the administraticn of justice, which are punished. as ®
offense against the court and differ from civil contempt
that the purpose of punishment is not to grant ‘relief tos
litigant but to maintain the dignity of the-court and up
~hold the power of Government. -Diréct criminal contempt
. ra 71
_¢onsist of misbehavior in the presence’ of the court or so
near thereto as to interfere directly with the administra-
tion of justice. Such contempts are expressly: excepted
from@he provisions of trial by jury. Indirect criminal
" contempt consists of violation of the orders of the court,
which is exactly the same_as the viciation of law, except
that the law is written in the order of the court instead
of ina statute.
The Supreme Court sustained the right of trial by jury .
required by congre ional enactment in the Clayton Act
in cases of in t criminal contempt in the case of
Michaelson v..U States (266 U. S. 42),-where the unan-
imous opinion of the Supreme Conrf, written by Mr. Jus-
- tice Sutherland, reads as follows:
ae ,
Contempts of the kind within the terms of the stat-
ute (criminal contempts described in the Clayton Act)
_ ‘partake of the nature of crimes in all essential par-
be proved that in the early law they were punished
only by the. usual criminal procedure, *, Transactions
of the Royal Historical Society, N. S., p. 147 (1885), -
and that at least in England it seems that they still.
may be and rk ey are tried-in that way.’’ Gom-
pers v. U. S. (233 U. S., 604, 610-611). * * .* The
statutory extension of this constitutional right (trial
by jury) to a class: of contempts which are properly
described as ‘‘eriminal offenses’’ does not, in our
opinion, invade the -.powers of the courts as intended
‘by the Constitution or violate: that, instrument in any
other way (pp. 66-67). © .
.
@
Section 13 of-the bill defines various tk rms used in the
act, and it is not believed that: any criticism has been or
will be made to these definitions.
The main purpose of these definitions is to. prov ide for
limiting the’injunetive powers of the Federal courts only
in the special type of cases, commonly cal'ed labor dis-
putes, in which these powers have been notoriously ex-
tended beyond .the mere exercise of civil authority - and
Wherein the courts have been converted into policing agen-
“8 .
ticulars. ‘‘So truly are they crimes that it seems to’ ~-
ie The other sections of the bill contain the usual prow
72
cies devoted in the guise of preserving peace, to the par
pose of aiding employers to coerce employees into accep
ing terms and conditions of eniployment desired by em
ployers.
The propdsed bill is designed primarily as a practieal
' \ ° means of remedying existing evils, and limitations ar
- imposed upon the courts in that class of cases wherein
these evils have grown up and become intolerable. This
is a reasonable exercise of legislative power, and in |
that the limitation may not be whittled away by r
definitions of what persons are to be regarded as legit
» mately involved in labor disputes, the bill undertakes spe
cifically to. designate those persons, who. are ‘entitled t
invoke the protections -of the procedure required. :
sions in regard to the possibility of the court’s h
ue portions of the act invalid and in relation to the repeal:
= in conflict with the provisions of the proposed
lation. .
. (8378)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.