# Appendix — United States v. Mine Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0182%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1947 - **Citation:** 330 U.S. 258 ## Text 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 ‘ 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 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. ; . 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 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 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0182%3A10. Public record. Not legal advice.